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FEW undertakings of my busy life have brought me more 
pleasure than the group of studies linked together in this 
volume. They were begun and carried to completion while 
I was a student at this university ; and if they possess any 
value, it is chiefly because of the spirit of original investiga- 
tion fostered here in every department of knowledge. 

Since I am about to send this volume to the press, I desire, 
with sincere respect and affection, to place on record my 
sense of personal obligations to President D. C. Oilman, 
Professor Gildersleeve, Professor Paul Haupt, Dr. H. B. 
Adams, and Dr. Richard Ely, of Johns Hopkins ; to Presi- 
dent W. T. Reid and Professor Cook of the University of 
California; and to Dr. Josiah Royce of Harvard, all of 
whom have helped me by the loan of pamphlets, by advice, 
and by their cordial interest in the undertaking. 


December, 1884. 

' vii 




Scope of the Present Investigation 1 


Ancient and Mediaeval Mining-Systems. The Codes of the 
Twelfth and Thirteen Centuries. Germanic Mining-Free- 
dom 10 


Customs of Cornwall. Stannary-Courts, Bar-Motes, and Tin- 
Bounds 25 


Early Mining in the United States 37 


The Spanish- American System of Government. Mining-Laws 

of Mexico 47 

The Missions of the Pacific Coast 59 


Spanish Town-Government. The Pueblo in California . . 72 


A Study of Alcaldes 83 





California Camps. The Days of '48 105 


The Earliest Mining-Courts, and their Influence on State Life . 123 

The Golden Prime of '49 132 


Evidence concerning Law and Order in the Camps . . . 150 


Illustrations from Early and Successful Camp Organizations . 165 


Forms of District Government. Folk-Moot, Standing-Commit- 
tee, and Alcalde 176 

How an Alcalde was once deposed 190 


The Miners' Justice of the Peace . . . . . . 199 

Organization of Town Governments by the Miners . . . 206 

The Difficulties with Foreigners in Various Camps . . .212 

The Famous Scotch-Bar Decision 219 

Sporadic Organizations. Cases of Mob-Law .... 225 




Local Land Laws and Legislation from 1848 to 1884 . . .232 

The Early Relationships of Mining and Agricultural Interests . 259 


Decisions of California and Other Courts respecting Local Laws 

and Customs 270 


The Extension and Permanent Influence of Mining-Camp Law . 279 


Effects, Social and Intellectual, upon Western Development . 287 






THE following pages deal largely with ancient, medi- 
aeval, and modern mining-laws, and with the life of 
mining-camps ; but this is solely for their value as con- 
tributions to American political science and American 
institutional history. The proposed investigation is as 
far removed, on the one hand, from a technical history 
of mining, as it is removed, on the other hand, from 
a digest of mining-decisions. It is primarily a study 
of the mining-camp commonwealths ; that is, of those 
States and Territories in the remote West whose devel- 
opment has been under conditions widely different from 
those that prevailed on the Atlantic slope and in the 
Mississippi Valley. It is also a study of the Spanish 
land-system in Mexico and in California, and of the 
relations of priest, alcalde, and commandante, in mis- 
sion, pueblo, and presidio ; for otherwise the place of 
the true mining-camp, as a nucleus of most effective 
organization, cannot be fully understood. It is an at- 



tempt to break ground in a comparatively new field, 
and to examine the laws and customs, not of primitive 
pastoral nor of primitive agricultural communities, but 
of the workers in ores, and the toilers in auriferous 

The best thoughts of such writers as Maine, Seebohm, 
Nasse, the Von Maurers, Laveleye, Kovalevsky, have 
been devoted to studies of early land-tenure. Patiently 
they have examined the traces of village communities ; 
of common lands, " Wald, Weide, and Wiese;" of the 
prehistoric "three-field system," whose rude crop-rota- 
tion the Teutonic farmers have followed, with various 
modifications, since the days of village moot assemblies 
by the Frisian Sea and on the Swabian Mountains ; and 
of the Russian Mir, Swiss Landesgemeinde, and old 
Teutonic field meetings, all of them primitive social 
organizations, and sources of such institutions as Saxon 
territorial tithings, English parish assemblies, and New- 
England town meetings. For men of our Germanic 
race this line of investigation is, doubtless, the widest 
and most important one that institutional history offers; 
but we shall do well to remember that all beginnings 
of government and society are valuable to the student, 
and that, since -the days of Tubal Cain, the arts of 
mining have fostered peculiar independence, and devel- 
oped a most distinctive organization. 

Thoughtful Americans feel that they cannot too thor- 
oughly understand our early civic communities, our 
towns, parishes, and counties, the germs of State and 
national growth, so firmly rooted in the past of our 
race. As Green, the " historian of the English people," 
wrote : " in the village moots of Friesland or Sleswick 
. . . England learned to be a mother of parliaments." 
Freeman, historian of the Norman Conquest, looking 


beyond our political and geographical separation, holds 
that "the English-speaking commonwealth on the 
American mainland is simply a part of the great Eng- 
lish folk," and urges that the members of this mighty 
kindred should be to each other " at least as much as 
were the members of the scattered Hellenic settle- 
ments," these all Englishmen, as those were all 
Greeks. In studying American colonial life, this sense 
of noble unity increases ; and we are inevitably brought 
to studies of the European sources of that life. Vir- 
ginia and Massachusetts lead us not only to the England 
of Shakspeare and Cromwell, but also to that older 
England of the Continent. 

But, if our institutional studies cease at the summits 
of the Alleghanies, we have learned only a part of the 
lesson that America has to teach. In that New West 
beyond the rocky borders of Nebraska, and the remote 
sources of the Missouri, American pioneers have shown/' 
their hereditary fitness for self-government under excep- 
tionally trying conditions. They have wrought out, 
and are still extending into new regions, local institu- 
tions in the highest sense their own. Their State life, 
growth of law, crystallization of society, largely came 
from small settlements known as mining-camps, and 
from a social organization presenting remarkable politi- 
cal and economic features. So strong, natural, and 
impressive has been the display in these camps of a 
capacity for organization of the highest order, that the 
episode known in the West as "the mining-era" de- 
serves to be called a stanza in the political epic of the 
Germanic race to which we belong. 

The influence of the Atlantic colonies prevailed with- 
out opposition in the early settlements of the Mississippi 
Valley ; but there came a time when American frontiers- 


men of the third generation found a new environment, 
adopted a new occupation, and met alien influences 
from Moor and Saracen, from Spaniard and Mexican. 
Problems more difficult were nowhere else presented 
on the continent: nowhere else were they more tri- 
umphantly solved. To-day, over the western third of 
the United States, institutional life traces its beginnings 
to the mining-camp : that is the original contribution 
of the American pioneer to the art of self-government. 
Boone and his foresters, Carson and his trappers, Bent, 
Bridger, Beckwourth, and their "mountain-men," all 
melted away before the tides of civilization, without 
being forced by imperious necessity to the creation of 
any code of local laws, or to the organization of any 
form of permanent government; but the early miners 
of the Far West showed large and noble capacities for 
bringing order out of chaos, strength out of weakness, 
because they were a picked body of men, and also be- 
cause the life they led fostered friendship, encouraged 
individuality, and compelled the closest social union. 

Thirty-seven years ago the discovery of gold in Cali- 
fornia caused thousands of miners to assemble in the 
canons of the Sierra Nevada ; and soon they were forced, 
by lack of Territorial and State government, to organize 
for self-protection, and to enact and execute their own 
civil and criminal codes. The previous history of this 
region had been such that many foreign influences con- 
tinued to act either directly or indirectly upon the rude 
but efficient system of the early mining-camps, until, 
with the formation of permanent government under a 
State constitution, all necessity for this local camp-law 
of the mountains of California appeared to have sud- 
denly ended. Nevertheless, a large portion of this local 
law, created thus rapidly and under such unique social 


conditions, exhibited surprising vitality. It persistently 
kept its place, persistently extended itself to other Ter- 
ritories, persistently influenced township and county 
government. It found ample recognition from Terri- 
torial and State legislatures, from Congress, and from 
the Supreme Court of the United States ; and it ulti- 
mately developed into what can safely be called the 
"American system of mining-law," a system that is 
honored throughout the civilized world, and forms the 
basis of mining-jurisprudence in many of the newer 
gold-regions of other countries. 

At the present time in the United States, over nine 
States and Territories, and throughout a rapidly devel- 
oping region already peopled by more than three million 
persons, and extending from the silver-ledges of south- 
ern New Mexico to the frozen placers l of Cceur d'Alene, 
and even beyond, mining-property is still held in the 
main by customs of tenure originated by the early 
placer and quartz miners of California. Although the 
present laws allow mineral lands to be " patented," and 
purchased from the government, it is still true that 
only the well-developed mining-properties are so pur- 
chased, and that the vast majority of claims are held by 
simple possessory rights under the " land-laws " of the 
camp or district. Often the early " camp " grew into a 
" district," embracing several camps ; and this district 
ultimately developed into a township of a county ; while 
the original " camp " in many cases became a " county- 
seat," though still retaining strong evidence in local 
customs of its growth and previous history. The free, 

1 The word "placer" is from the Spanish. It means "content," 
" satisfaction." " Placers are superficial deposits of gold which occupy 
the beds of ancient rivers " (Decision in Case of Moxon vs. Wilkinson, 
2d Montana Reports). 


strong life of the mining-camp has been a factor of 
prime importance in the social, literary, and institu- 
tional development of large and prosperous American 
communities. The laws of the mining-camp, in modi T 
fied form, still influence many of the newer States and 
Territories. Nothing that is likely to happen will ever 
take from the civilization of this imperial domain of 
Pacific-Coast and Rocky-Mountain region certain char- 
acteristics due to the mining-camp era. Even when, a 
century hence, it is, perhaps, divided into twenty States, 
with a population of twice as many millions, the atmos- 
phere and traditions of the mining-camp will yet linger 
in the mountain gorges, and fragments of the miner's 
jurisprudence will yet remain firmly embedded in local 
and State law. 

In order to better understand these camps of the Far 
West, it has seemed proper, and indeed necessary, to 
first investigate, though briefly, the ancient and rneclue- 
val mining-systems. Through legal sources, and by 
means of history, chiefly Spanish, English, and German, 
we must connect the mining-experiences of the New 
World with those of the Old, sufficiently, at least, to 
serve for purposes of illustration. We shall every- 
where discover that, as Professor Stubbs says in his 
" Constitutional History," " the roots of the present lie 
deep in the past," and that "nothing in the past is dead 
to the man who would learn how the present comes to be 
what it is." The very kind of local law and self-gov- 
ernment known to the miners of California has existed 
in some degree among the miners of many other lands. 
The mining-tribes of ancient Siberia, the mining-cities of 
desert-guarded Midian, the Grecian "companies" that 
"drifted" in the hill of Laurium, the Carthaginian 
" prospectors " who " panned out " gold from the sands 


of Tagus and Guadalquivir, each and all contribute 
precious material to our investigation. Above all, the 
customs of Cornwall and Thuringia serve to define, 
illustrate, and explain the workings of primitive law 
on the Pacific Coast. We must also study the Spanish 
civil and mining code, as developed under Mexican 
skies, and as transplanted to the soil of Alta California. 
In California itself we must trace Spanish-American 
forces from the days of saintly Padre Serra and bluff 
Governor Portala to the advent of the bold, restless 
Anglo-Saxon trappers, farmers, and miners, with their 
capacity for work, and their faculty for organization. 

At the point of time when the military governors of 
newly conquered California began to rule along the 
coast, and when the eager, energetic miners first pitched 
their tents beside the foaming Feather arid Yuba, and 
swung their mighty picks against the splintering bowl- 
ders, and hewed their "rockers " from the giant mountain 
pines, century-old, overhead, our investigation, pursued 
through so many preliminaries, broadens at last into the 
study of American miners' courts, their officials, their 
criminal and civil codes, their land-system, their forms 
of procedure and government. Some of these forms 
were adopted from Spanish law, some from primitive 
forms familiar to the Germanic races from the times of 
Tacitus, some were peculiarly a product of the men and 
the emergency, but all are historically interesting and 
important. From this point our studies are properly 
confined to an examination into the growth of these 
forces, and of their abiding influence upon later society 
and government. We must not look upon this period 
as merely a brilliant episode full of impetus and splen- 
dor, dear to the heart of the Western pioneer, and 
crowded with precious accumulations of material for 


coming poet and novelist, but as including elements 
of permanent historical value, judged by a standard of 
utility, and as, in reality, an episode of great institu- 
tional importance, closely connected with a curious past, 
and still an influential fact in forms of local organiza- 
tion as yet incomplete. 

One result of our labors will, perhaps, be that we 
shall more clearly comprehend the capabilities of our 
Germanic race for swift adaptation of the means to the 
end; for readiness in every emergency; for rapid, yet 
lasting, social organization ; for acceptance and transfor- 
mation of local institutions already at hand; for that sort 
of hearty, honest compromise which makes the best of 
circumstances, and continually evolves better and better 
conditions under which to act. Perhaps we shall thus 
gain a higher faith in that Republic whose children have 
wrought out, unknown, in silence, and under enormous 
difficulties, laws wise and good for the sufficient pro- 
tection of life and property, adding, of their own will 
and choice, the majesty of government to the careless 
freedom of their frontier existence. On this higher 
level, as a humble contribution to the practical political 
experience of the race, this study of the hitherto un- 
described institutions and unwritten laws of typical 
mining-camps must find, if anywhere, its reason and its 

In 1866 the chairman of the Senate Committee upon 
Mines and Mining closed his report upon a bill then 
before Congress, in the following language : 

"It is essential that this great system" (of local law) 
" established by the people in their primary capacities, and 
evidencing by the highest possible testimony the peculiar 
genius of the American people for founding empire and 


order, shall be preserved and affirmed. Popular sovereignty 
is here displayed in one of its grandest aspects, and simply 
invites us, not to destroy, but to put upon it the stamp of 
national power and unquestioned authority." 



MAN, as Aristotle remarks, is endowed with an in- 
stinct subservient to the ends of social union, and is 
led thereto by the commands of Nature. Through three 
great forms of productive industry, this instinct has 
been exercised and developed: first, by the life pas- 
toral, the keeping of cattle, the tending of sheep, the 
reining of wild horses ; second, by the life agricultural, 
the wrestling with tangled forests, the breaking of 
the stubborn soil, the walling-in of " tun " and " burh ; " 
third, by the life of miners, the search for metals both 
useful and precious, the impetus thus given to commerce 
and the arts, the development of inventive skill, the 
closer organization akin to that of cities. 

The value of the precious metals was understood in 
the earliest ages, as appears in the literature of ancient 
Oriental nations, the rent-rolls of Assyrian monarchs, and 
even the curious public libraries of that antediluvian 
race, the Accadians, who had collections at Sippera, 
Pantabiblia (" Book-town "), and elsewhere, and whose 
cylinders of baked clay speak of " gold weighed out for 
payment." The Egyptians are known to have had rich 
gold-mines in Nubia and Abyssinia, also in the deserts 
of Sinai and on the borders of Arabia, where they also 



mined for turquoise, copper, and silver. A papyrus of 
the nineteenth dynasty still exists, containing plans 
of the workings of the Nubian gold-mines. Herodotus 
gives the annual product of the ancient Egyptian mines, 
as recorded upon the walls of one of the palaces of the 
kings of Thebes, as a sum equivalent to thirty millions 
of dollars. This was chiefly from quartz-veins, which 
Diodorus describes as "glittering with bright metals, 
out of which the overseers cause the gold to be taken." 
Egj^ptian and Assyrian methods were purely despotic, 
crushing and destroying the earlier freedom of the 
miner, which had in all probability existed, and substi- 
tuting the doctrine that the ownership of all minerals 
was vested in the crown. 

The Phoenicians mined copper in Kypros, and gold 
in the mountains of Thasos, where, as Herodotus tells 
us, they had "overturned a whole mountain," even 
before the thirteenth century B.C. The Book of Job 
contains a realistic description of the early methods of 
mining extant in Arabia, and doubtless stimulated by 
Phoenician traders. When the merchandising of the 
Phoenicians began to assume world-wide proportions, 
their caravans developed the gold-searching instincts of 
many a semi-civilized nation and half-savage mountaineer 
tribe. Throughout Asia, the "Golden Continent," are 
the remains of ancient and extensive gold-workings on 
the Smejewka in Siberia, in the Urals and the Caucasus, 
along the Oxus and Indus, in Arabia, Persia, Tibet, 
Biluchistan, Japan, and at many other widely separated 

The probabilities in regard to most of the prehistoric 
placer-mines in Northern Asia are, that they were worked 
by wandering Scythian tribes, who were, perhaps, on 
much the same intellectual level as the turquoise-miners 


of New Mexico, the mica-miners of North Carolina, and 
the ancient copper-miners of the Lake-Superior region; 
carrying on their mining-operations with rude appli- 
ances, and without other than a tribal organization. In 
the same region, Gmelin, during the last century, found 
upwards of a thousand small smelting-furnaces of brick, 
evidently used for gold-ores many centuries ago by 
miners of whom we have no further record. It is, how- 
ever, an interesting reflection, that some portion of a 
modern coin, ornament, or vessel of gold, may consist 
of Siberian metal bartered for by Phoenician merchants, 
sold to Persia, conquered by Alexander, offered as a 
part of the annual tribute of one hundred million dol- 
lars which Gibbon estimates that the provinces sent to 
Rome, paid by the degenerate Greeks to Harold Har- 
drada when he stood among their Varingians, won at 
Stamford Bridge, and lost at Senlac. Such is the per- 
manence of gold, that, in the worn wedding-ring a starv- 
ing woman offers to-day at a pawnbroker's counter in 
New York, there may be particles that once shone in 
the crown of Sestu Ra, the Grecian Sesostris, or helped 
to cover the Ark of the Covenant. 

Change and decay have ever been the fate of the 
most famous of mining-regions. Mountainous Midian 
furnished a hundred and thirty-five thousand fierce 
Bedouin warriors in the divy when her "captains and 
mighty men of valor " for seven years overran Palestine 
(thirteenth century B.C.), driving the people for refuge 
to the mountain caves and fastnesses, until the greatest 
of the judges of Israel arose, sifted his followers by the 
"Spring of Trembling," and defeated the invaders in 
the Valley of Jezreel. But this Midian, anciently so 
populous, has now become a desert land, inhabited by 
only a few nomads. On the sea-coast, and far inland 


along the channels of perished rivers, are the ruins of 
large cities which were chiefly supported by mining- 
industries. The placers and rich gravel-mines, whose 
exhaustion caused the decay of once wealthy and com- 
mercial Midian, are fairly reticulated with old water- 
ditches; on the barren hills are vast reservoirs and 
ruined walls ; the country was long ago denuded of its 
forests for mining-purposes; and so waste and desolate 
does the region appear, that its ancient prosperity is 
hard to understand, although the unimpeachable evi- 
dence is before the eyes of every traveller in the " land 
of Midian." 

'The historical and geographical link between Asia 
and Europe is Lydia. The broad, fertile, and easily 
tilled plains of the classic Kayster were encircled by 
mountains rich in mineral wealth. Among the Phrygo- 
Thrakians were mining-tribes whose chief occupation 
was in gathering gold and silver, learning to smelt the 
latter with great skill, and finally inventing a coinage. 
Strangely enough, the Lydian standard, the silver mina, 
afterwards used with slight changes by the Greeks, was 
truly the mana of the Accadians, given by them to 
the Babylonians, and so transferred, by way of Persia, 
to the mountaineers of Lydia. In this, as in so many 
greater things, Europe drew the sources of her knowl- 
edge from the remote, despotic, and mysterious Orient. 
But, as regards methods of mining, all the Oriental 
monarchies were alike in the use of the most cruel forms 
of slave-labor and in the greatest conceivable waste. 
From an institutional stand-point, they afford little that 
is worth study. The mere figures of gold-yields are 
astounding. Solomon, it is estimated, had a yearly 
income of twenty-three and a half million dollars in 
gold alone ; and Calmet thinks that he spent on Jerusa- 


lem and the temple the sum of four thousand million 
dollars. Diodorus tells us, that, out of the ashes of Susa 
and Persepolis, seven million dollars in gold was ex- 
tracted. But treasure-houses such as these were filled 
by forced labor and royal monopolies. In the case of 
the early Oriental powers, the tribes upon their borders 
who were developing local systems for the ownership 
and working of mineral deposits were crushed and over- 
whelmed before those systems could take permanent 
form. We must leave " the wide Asian fen," and turn 
to the hills around whose heights " the first-born olive- 
blossom brightened," to the rocky coasts that " sheltered 
the Salaminian seamen," to " nodding promontories and 
blue isles and cloud-like mountains," to the city "violet- 
crowned," whose deathless memory moves like sunlight 
about the broad earth forever. 

In the Athenian state, we discover the first orderly 
and effective system in regard to the management of 
mineral resources, and the government of mines. The 
famous silver and lead mines of Laurium in southern 
Attica rose to prominence about the year 600 B.C., and 
were worked with varying success till the second century 
before the beginning of our era. In 1864, after nearly 
two thousand years of neglect, the old shafts were re- 
opened by a company of French capitalists. An esti- 
mate has been made, that, during the three hundred 
years that the Athenians worked these mines, they pro- 
cured two million one hundred thousand tons of lead, 
and twenty- two and a half million pounds of silver. 
According to the law of Athens upon this subject, the 
mines were not freehold property. Although belonging 
to the state, they were not leased or farmed out to the 
highest bidder, as was the Roman custom : they were 
granted to individuals to use as a permanent tenantcy. 


A small sum was paid on taking possession, and only 
one twenty-fourth of the gross ore-yield of the mine was 
required as rent. The mine was then to all intents pri- 
vate property, unless neglected ; when the state could 
bring suit, and recover. The statement, that before the 
time of Themistocles the mines were the absolute free- 
hold property x>f certain families, rests upon slight 
authority, and seems improbable. Any and all members 
of the community were empowered to institute public 
suits against the mine-possessors in case of their viola- 
tion of any statute, and suits of this sort were frequent- 
ly brought. There is evidence of the existence of a 
"director of the mines," elected by those interested. 
The income which the state derived from the rents was 
annually distributed among the citizens, in much the 
same way as was the " Theoricon " in later times, every 
one whose name was in the book of the Lexiarchs receiv- 
ing his portion. Themistocles, it will be remembered, 
persuaded the Athenians to devote this income to the 
building of ships. 

From Xenophon's " Treatise upon the Revenues," and 
Demosthenes' speech against Pantaenetus, we gather 
much about the Grecian system of managing the Lau- 
rium mines. Companies were organized to work one 
or more shafts, and many of the wealthier Athenians 
owned shares in several such enterprises. The size of 
each " claim " was strictly defined, and private enter- 
prise was greatly encouraged to send out "prospectors." 
Secure though the tenure of mining-property was, it 
could be transferred only to a citizen, or to aliens capa- 
ble of holding agricultural lands. Any person was 
allowed to dig for new mines in unexplored places ; but, 
although richly rewarded, successful prospectors had no 
prior right : what they found belonged to Athens, and 


might be rented to any other person. The labor used 
in the mines was that of private slaves. Each shaft 
was registered by the mine-inspector of the state, who 
examined the supports of the various drifts and galleries, 
and saw that the bounds were not exceeded. Lessen- 
ing the supports of a drift, and trespass, were punishable 
by fines, infamy, banishment, or death. Demosthenes 
addresses the tribunal as the "mining-court," set to, try 
"mining-cases." Some of the island mines paid one- 
tenth of the ore to the shrine of Apollo at Delphos. 

Spain, the Peru of Europe, and in minerals the rich- 
est country of the ancient world, developed slowly, and 
under enormous pressure, a system of mining-laws which 
once ruled the greater portion of the American conti- 
nents, and still prevails in variously modified forms 
throughout Mexico, Central and South America. In 
that law, deeply embedded as fossils in a slab of lime- 
stone, there yet remain principles of widely differing 
origin, Carthaginian, Roman, Gothic, Moorish, Cas- 
tilian. But the traces of mining-institutions are few 
indeed under the dominion of either Carthage or Rome. 
Instead of many mine-owners, bound together, as in 
Athens, by a common law, having the same duties 
towards the state, and equal protection from it, we 
have in Spain, under Carthage, the almost uncontrolled 
authority of the proud family of Barca. Hannibal 
procured about three hundred pounds of silver each day 
from his Spanish mines. Pliny describes the method 
of obtaining gold from streams of Spain by using a 
pan, also a method of " ground-sluicing ; " and he men- 
tions the use of timber supports in drifts and tunnels, 
some of which extended fifteen hundred paces into the 

Even in Carthaginian days, the almost inevitable 


destruction attending great mining-operations was going 
on with unusual rapidity in Spain ; subsequent Roman 
methods wonderfully accelerated this ruin. Their mines, 
farmed out to the highest bidders, were wastefully worked 
and recklessly destroyed. For a time the Romans em- 
ployed twenty-five thousand slaves at Carthagena alone, 
and the silver-yield was equal to ten thousand dollars 
daily. The Spanish placers yielded large sums; and 
they also were farmed out, after the manner of the silver- 
mines. Inventive skill of a high order characterized the 
early miners of Spain, who greatly improved the Egyp- 
tian methods of grinding or smelting ores, and extracting 
the precious metals. All this implies close organization, 
division of labor, and severity of discipline. The later 
Roman emperors made reforms in the close military sys- 
tem, gave more sway to private enterprise, allowed some 
mines to be worked by associations, granted the " pros- 
pectors" permission to search for mineral, and intro- 
duced a sort of feudal service. The Romans also knew 
of placer-mines in northern Italy, discovered by the 
Etruscans, who even brought iron from Elba; but, 
curiously enough, the Roman senate would not allow 
them to be worked. The Salassians opened placers in 
Lombardy ; and, as Polybius relates, the Taurisci found 
such rich placers near Aquila, that the price of gold fell 
one-third throughout Italy in the space of two months. 
Thus far in our investigation we have seen, that, 
although the gold-hunger has ever furnished a stimulat- 
ing element to early society, the ancient world afforded 
narrow opportunities for the development of valuable 
institutional forms among the classes engaged in mining. 
We read of rich placer-mines by the score, but not of 
their local legislation and self-government; such fea- 
tures being absent until the advent of miners of the 


race whose "political instinct" has become a familiar 
phrase. Golden sands of the rivers of Tibet and India 
set long caravans in motion past Babylon, past Palmyra, 
to imperious, luxurious Tyre ; golden nuggets from the 
Chinese frontiers poured into stately Balkh, "mother 
of cities," cradle of ancient kings, and greatest satrapy 
of Persia; Grecian placers of Pactolus yielded their 
treasures to Croesus, and were still worked in the days 
of Xenophon. But waste and barren of constructive 
energies were all the mining-regions of ancient Europe 
and Asia. As the mining-history of the mediaeval 
world shows, the Germanic races, and they alone, have 
organized true mining-camps which developed into 
higher forms of society. Whatever elements other races 
have contributed, the informing spirit of such camps 
has been thoroughly Germanic. The organization of a 
Spanish mining-law began with the Visigothic kings, in 
the days of Pelayo ; the laws of the California camps 
of 1849 were linked in spirit to the " mining-freedom " 
and the mining-cities of the middle ages. 

It is impossible to determine what influences from 
the Roman mining-world, which even in its decadence 
embraced all the rich mineral regions of southern 
Europe, could have survived the chaos and wreck of 
barbarian conquest. 

After the fall of Rome, the Arabs, Franks, and Goths 
in Spain, Gaul, and northern Italy, worked to some ex- 
tent the abandoned and nearly exhausted Roman mines. 
To northern Spain the Visigoths brought a new force ; 
and the Fuero Juzgo, or code of laws of the Gothic 
predecessors of Alonzo the Wise, shows greater freedom 
of the individual, greater respect for local institutions 
and for self-government, than Spain had previously 
known, Hints of local mining-organizations in Thrace, 


and along the Danube in the fifth and sixth centuries, 
make it evident, though definite records are lacking, that 
wandering miners existed in that region, and were slowly 
"prospecting" the mountain ranges to the north and 
west. Hungarian mining can be traced back to the year 
750, begun by prospectors from Gaul, says Reitemeier. 
But German mining-history clusters about the Hartz 
Mountains ; and it is a significant fact, that mining began 
there, at the great Andreasberg ledges, in the midst of 
a political and national renaissance which profoundly 
stirred and influenced the whole of central Europe. It 
began there towards the close of the tenth century, in 
the reign of Otho the Great, second emperor of the 
Saxon line, who wore the iron crown of Lombardy and 
the imperial crown of Rome, reviving the glories of 
that holy empire, obscured since the mightest of medi- 
aeval monarchs had sunk to rest with his paladins and 
his sword, in the reign of that Otho whose father, 
Henry, had driven back the heathen in many a fierce 
battle, had quelled the wild Magyars at Merseburg, had 
taken the Mark of Brandenburg from the Sclavoniaus 
to become in after-time heart of Prussia and appanage 
of the Hohenzollerns, had built frontier fortresses, and 
posted his warrior Mark-graft to protect the borders 
against Dane and Finn, Sclav and Hun. With a firmer 
government, a stronger national life, material enter- 
prises developed wonderfully ; the forest-ways began to 
be trodden by peaceful merchants, and explored by 
seekers for precious metals. In Saxony, in the tenth 
century, mines of vast richness were discovered by 
Bohemian salt-carriers, who found silver ore in the ruts 
worn on a steep hillside by the wheels of their rude 
cart. The early German miners soon began to make 
enactments to govern themselves. A law of mining- 


claims, and rules of mining-life, prevailed among these 
first Thuringian miners who struck pick into rocks of 
Black Forest and Hartz, and unveiled the treasures of 
Freiberg, no less certainly than similar laws and usages 
prevail to-day among the organizers of the newest camps 
on the Rio Grande and Yukon. The Mark method of 
dividing lands was no more certainly a product of the 
thought of the Germanic race than are the customs 
which to-day govern freemen in distributing with fair- 
ness the auriferous soil of western placers. The spirit 
of the tribes of whose social and political organization 
Tacitus gave so vivid an account, lives at this hour in 
free " miners' courts " of Idaho and Alaska. 

To Germanic sources we must trace the most impor- 
tant principles of mining-law. The local customs of the 
earliest Hartz miners have never since ceased to exert 
an influence upon civilization. The Mark system of 
common lands, annually re-distributed, was most likely 
the foundation of early German mining-regulations ; but 
it took so long to make a mine productive, that the 
re-distribution plan could not be permanently adopted. 
The plan of making ownership depend upon actual use, 
and limiting it to small, well-defined tracts, was the 
obvious substitute. All the early German codes express 
the idea of mining-freedom, of a possible ownership of 
the minerals apart from the soil, of the right of the 
individual to search for and possess the precious metals, 
provided he infringed on no previous rights. This 
"mining-freedom " (Bergbaufreiheit) contains the essence 
of all frontier mining-customs ever since. The right to 
"prospect," "locate " a given claim, and hold it against 
all comers until abandoned, is the right guaranteed, in 
one form or another, by the newest mining-camps of 
Montana. This is the same right once possessed by 


the men of the " seven mining-cities of the Hartz," and 
by those of Freiberg, of Truro, of Penzance, and of 
other cities of the middle ages where mining guilds and 
organizations existed. 

The first written document which embodies these 
rights is the mining-treaty of 1185, between the Bishop 
of Trent and certain immigrants from Germany. Other 
codes appear later ; in 1250 one in Moravia, in 1307 one 
in Styria. All these, and others of the period, were 
founded on the unwritten custom, on those usages 
" which have lasted from tune immemorial." The Mo- 
ravian or Iglau code provides for the appointment of 
officials to fix mine-bounds, and defines conditions of 
ownership. The full size of a claim is set at four hun- 
dred and seventy-nine feet long, and one hundred and 
ninety-six feet wide ; a portion is set aside for the king, 
and a part for the town if on common lands, for the 
owner if on private property. Mining-courts are granted 
with special rights and jurisdictions (Bergbehorde). In 
later years the miners gave effective aid to burghers 
and artisans in their struggles against the robber barons. 
The precious " mining-freedom " asserted by the work- 
ing miners underwent severe assaults from small land- 
owners, from petty princes, and from the emperor 
himself; but its broader principles were, as a rule, main- 
tained intact. During the sixteenth and seventeenth 
centuries, German mining-jurisprudence grew exceed- 
ingly complicated, and covered a great range of topics. 
Associated mining-enterprises were frequent. Miners 
from the most famous districts of Germany had long 
been in demand in other mineral regions of Europe, 
and often offered their services to foreign kings. Every- 
where they carried with them the customs, laws, ex- 
perience, and superstitions of the craft. They worked 


mines in northern Italy, in France, in Scotland and 
England, developing a strong professional pride and 
secrecy. They filled the place in the mediaeval world 
that Cornish miners occupy in modern times. Theirs 
was the reputation for dealing with the most stubborn 
ores, and the most difficult engineering problems. 

Speaking in the broadest sense, the true relationship 
which exists among the laws of all "mining-camps" 
worth the name, is not so much in the form of the laws 
themselves, as in the organizing capabilities of that race 
which works out similar results under similar circum- 
stances, with surprising fitness of method and fulness 
of harmony, and with supreme and all-conquering self- 
confidence. No one is able to show that there has ever 
been any uniform theory of law for mining-camps, 
scarcely more than for caravans in the desert : but it 
has nevertheless happened, owing to this inherent polit- 
ical instinct, that whenever and wherever men of our 
Germanic race found minerals, they developed a satis- 
factory system of local government, based on a series 
of compromises, and differing in essential particulars 
from the sort of local government developed no less 
naturally by agricultural communities ; their judgments 
grew swifter, and their justice surer, as was needed to 
counteract the volcanic passions and disrupting tenden- 
cies of their fascinating and hazardous pursuit. In the 
hands of the Germanic race alone, this fierce gold-hunger 
has been controlled, utilized, and made a force of pri- 
mary importance in the shaping of civilized society. 
Communities created and built up by mining-industries 
have thus been transformed, without danger and with- 
out loss, into communities based on agriculture, com- 
merce, and manufactures. With men of other races, 
the possession of wealth-laden placers has too often 


meant their rapid, reckless exhaustion, the washing- 
away of every particle of soil, the destruction of every 
forest-tree, the inevitable decay and desertion of towns, 
the absolute ruin and complete desolation of the entire 
region : with men of our race, the exhaustion of placer- 
mines has only hastened the development of more potent 
and permanent resources, has given us the wools of later 
Australia, the wheat and wines of later California. 

The institutional history of modern mining-camps 
thus finds its proper place in the ever-broadening story 
of local self-government among men of our race, the 
story which runs back to the days when rude, brave 
men lifted a chosen leader on their ringing shields, and 
swore allegiance ; when the three judges, each with his 
twelve doomsmen, met in yearly tribunal ; when "broth- 
ers of the sword-oath " (in Icelandic, ver svorjum Bru- 
derskaft) bound their rune-cut, bleeding arms together, 
swearing eternal freundschaft over their naked war- 
weapons. You may find to-day, if you are able to recog- 
nize old types in new attire, the true descendants of the 
Germanic " sword-brothers " in the devoted " pards " of 
a raw mining-camp on the outposts of civilization ; and 
closer resemblances than this lie thickly scattered along 
the course of our investigation. To those who have 
ears to hear, the free and unconventional yet sufficiently 
systematized life of mining-camps is able to tell a story 
of the beginnings of things, of forest meetings in Sax- 
ony, of freemen in isolated villages assembling to allot 
the common lands, of English folk-moots in England 
before the waves of conquest rolled over the wild 
heights of Exmoor, before the hill-fortress of Exeter 
passed from Keltic ownership, before Lindum Colonia 
became English Lincoln. Since Germanic mining be- 
gan, certain vital principles have been asserted by the 


men of camp, district, and mining-town. The local 
mining-law whose sources are as old as the capitularies 
of Charlemagne, and probably far older, is a living force 
in the world to-day. Professor R. W. Raymond says 
of early Germanic mining-law, 

" In the form of a local custom, obtaining with remarkable uni- 
formity in all the original centres of German mining, the principle 
of mining-freedom established itself, permitting all persons to search 
for useful minerals, and granting to the discoverer of such a deposit 
the rights of property -within certain limits. This principle of free 
mining emigrated with the German miners to all places whither 
their enterprise extended itself, and the original local custom be- 
came the general law. In this existence of an estate in minerals, 
entirely independent of the estate in soil, lies the distinctive charac- 
ter of German mining-law. It is eminently a special law, not sub- 
ordinate to civil law but co-ordinate with it." l 

1 Relations of Governments to Mining. United-States Mining Re- 
port, 1869. 



THE development of local legislation among some of 
the miners of England furnishes most useful parallels 
to the development of such legislation among American 
gold-miners. Valuable gold-mines have existed in Eng- 
land, Scotland, Wales, and Ireland ; and mining excite- 
ments have several times occurred over the " auriferous 
gossan" of Cornwall and Merionethshire. A Briton 
tribe, the Trinobantes, coined gold, it is said, from the 
" placers " of Essex. Edward III. issued a writ assert- 
ing royal rights over a gold-mine in Salop County, and 
Henry IV. did the same in several instances. During 
the reign of James V. of Scotland, some three hundred 
placer-miners worked for months at " Gold-scaur," near 
Wanlochhead, and collected more than a million dollars. 
The largest nugget found weighed thirty ounces ($480). 
Many instances of alluvial washings for gold in the 
British Isles might be given from the old chronicles ; 
the latest being those of Wicklow, Ireland, worked in 
1796. But no trace of "local law" seems to have re- 
mained; and we are forced to turn to the lead, tin, and 
copper miners, for examples of successful organization. 

Local customs of the utmost importance have long 
existed in Cornwall, Devonshire, and Derbyshire, chiefly 
in Cornwall, that land of folk-lore tales and strange 



survivals. When, as legends declare, "St. Michael's 
wooded mount was six miles from the sea ; " when the 
early Britons, or as modern Cornishmen call them " the 
old-men," were simple placer-miners digging up " stream 
tin " from alluvial channels, and leaving traces of their 
toil from Land's End to Dartmoor ; when Beltane-fires 
were lit, and St. Piran became the miners' merry saint, 
there was rude organization among the miners of Corn- 
wall. They held great public assemblies under the open 
sky, upon chosen spots on the wild moor, surrounded 
by earthen walls, traces of which yet remain ; and these 
meetings were called Guirimears or speech-days. Old 
smelting-furnaces of this Keltic period still exist, and 
the modern miners call them " Jews' houses." A curi- 
ous old song, apostrophizing early Cornwall, says, 

" Come old Phoenicians, come tin-dealers, 

From Marazion come, ye Jews; 
Come smugglers, wreckers, and sheep-stealers, 
Come tell the ancient county news/' 

Into this prehistoric drift, to borrow a term from 
geology, an adventurous element was brought from 
widely diverse sources. There was a wild freedom in 
the air of Cornwall ; and outlaws sought its forests, sea- 
rovers the shelter of its cliffs. Literature, with its 
divine instinct, loves the stormy land where Tristram 
slew giants, and Hereward wrought deeds of prowess ; 
and some of the greatest of living poets have made its 
shadowy legends as immortal as the tales of the Vol- 
sungs. Long ago the miners of "wild, bright Corn- 
wall " chose their standard, a white cross on a black 
ground ; until within this century they kept " Old 
Christmas," the 5th of January, and for twelve days 
suffered no fire to be taken from their hearths. So 


tenaciously does the past survive in the present, that 
even now a verdant branch is fastened on midsummer- 
day to the highest woodwork of the steam-engines, to 
mark the beginning of the Baal-year. 

Early in the middle ages, miners from the heart of 
the Black Forest found their way to Cornwall. 1 They 
left numbers of mining-terms embedded in the language, 
and greatly modified the local laws and customs. The 
use of the divining or "dowzing" rod in England is 
not older than the advent of German miners, brought 
over by Queen Elizabeth to teach the Cornishmen how 
to work certain refractory ores. One of these, named 
Schutz, became warden of the stannaries. At this point, 
then, we discover the institutional link between English 
and German mining-law: we also understand how it 
has come to pass that the Cornish miners of Nevada 
and Montana still use a vocabulary some of whose terms 
are derived from phrases in use among the miners of 
Freiburg six centuries ago. 

The former rights of the " free prospector " or " tin- 
bounder " of Cornwall have only recently fallen into 
disuse. The ancient stannary-courts, which we are 
now to describe, have only of late years received any 
serious modification ; and, though shorn of many of 
their ancient dignities, they still remain as, historically 
speaking, the last representatives of older and far more 
powerful forms. 

The local mining-courts, and the force of local custom, 

1 There was also some migration of Cornish miners to Germany. 
Camclen's Britannia says, " After the comming in of the Normans the 
Earles of Cornwal gathered great riches out of these mines . . . sith 
that in those daies Europe had tinne from no other place." He goes 
on to state that in the year 1240 " was tinne mettall found in Germania 
by a certain Cornishman driven out of his native soil to the great losse 
and hindrance of Richard, Earle of Cornwal." 


were authoritatively recognized by the organization of 
the chief stannary-court, which long proved a most 
valuable right and defence of the miners. It has been 
modified into a court of records ; but it originally existed 
as an original court of equity, of the vice-warden of all 
the stannaries of Cornwall. 1 At the present time it has 
jurisdiction in certain matters over all companies en- 
gaged in tin-mining; but its local, representative, and 
legislative character no longer exists. The stannary- 
court is treated of at length in various Chancery and 
King's Bench reports, and in papers published in the 
British Geological Reports ; and it was established, rec- 
ognized, and enforced by numbers of ancient charters. 

King John granted a charter to the tin-miners, giv- 
ing them the right to mine on waste and unoccupied 
lands. By a charter of 33d Edward I., all the working 
tin-miners were given privilege of being sued only in 
the vice-warden's court. According to this and subse- 
quent grants, the " ancient charters, local customs, and 
records of lower courts " were always to be received 
as evidence. Henry VII. increased the powers of the 
legal convocation, or " parliament of tin-miners," which 
had settled disputes and made laws respecting tin-claims 
since the days of Edward III. This stannary parlia- 
ment consisted of twenty-four influential miners or 

1 Camden's account, in his Britannia, is as follows: "The whole 
commonwealth of those tinners and workmen as it were one body hee 
(King Edward Third) divided into four quarters . . . Foymore, Black- 
more, Trewarnaile, and Penwith. OveiHhem all hee ordained a Warden 
called 'Lord Warden of the Stannaries and Stannum,' that is, tinne, who 
giveth judgment as well according to equitie and conscience as law, and 
appointeth to every quarter their stewards, who, once every three weeks 
. . . minister justice in causes personall between Tinner and Tinner and 
between Tinner and Forrainer. ... In matters of moment there are 
general parliaments suinrnonned whereunto jurats are sent out of every 


stannators, six chosen in each district. The last par- 
liament was held at Truro in 1752. Here the men 
of Penzance and Carclaza, of Botallock, Cam Brea, 
and dozens of other mining villages and towns, met, 
and formulated Cornish mining-laws. They came from 
quarry-like mines on the barren moor, open to the sky; 
from shafts sunk deep in the earth; and from drifts 
extended half a mile under sea, where hammer-blows 
sounded beneath the keels of ships, with but ten feet 
of crumbling rock between. To-day the descendants of 
these men are among the boldest and most successful 
miners in America. At Eureka, on the Comstock, in 
the Black Hills, wherever one goes, in fact, the heredi- 
tary mining-lore of the Cornishmen is in demand. 

The miners of the Mendip district, Cornwall, as late 
as the seventeenth century, punished those who stole 
ore from the drifts with banishment, and with burning 
of the offender's domicile ; theft being considered, as in 
the Western camps of to-day, a crime of peculiar turpi- 
tude. These Mendip miners manifested a mingling of 
superstitious dread, and of faithful loyalty to each other, 
in their strict rule that the body of a miner who had 
been killed in a drift must be dug out, at any cost, and 
given Christian burial, before a stroke of work would 
be done elsewhere by a single miner. They also had 
local laws respecting the explorations of waste ground, 
and rights of discoverers, which were always respected. 

Indeed, local mining-customs have existed in Corn- 
wall " from time immemorial," as the King's Bench Law 
Reports tell us. Miners' rights and privileges were 
definitely settled centuries ago, and have been tena- 
ciously held ever since by the descendants of those 
whom the varied mineral wealth of the Cornish land 
first attracted to its sea-girt cliffs and granitic moors. 


The custom prevailed, even within the past twenty 
years, that any person might enter upon the waste 
land of another, mark out a plot of ground, send a 
description to the stannaries' court, and lay claim to 
it, provided that he proposed to work it himself "in 
good faith." In the early part of this century, a written 
description was required, just as in Western camps a 
written claim-notice is necessary ; but in still earlier 
times a verbal statement was considered sufficient. The 
written notice was read in the stannaries' court at three 
successive meetings; when, if no valid objection was 
raised by any person, the court accepted it, and pro- 
ceeded to deliver possession to the "bounder," who 
then had exclusive right to mine for tin and other min- 
erals within the limits of his " bounds." The first act 
of the owner was to define the corners of his property 
by rearing piles of turf and stones, or by sinking small 
square pits. It has always been the " custom " to mark 
claims thus in Cornwall. When the earliest miners 
of the region recognized " mining-claims " as property, 
and began to ordain and enforce a general system of 
obtaining them, they had taken a most significant step 
towards organization. 

The possession of this " tin-bound," thus acquired by 
" taking it up," to use the American expression, 
involved the payment of a tax known as " toll-tin " to 
the owner of the land. This percentage varied ac- 
cording to the yield of the district, but not according 
to the yield of that particular shaft. In other words, 
the owner of the soil and the "bounder" of the mine 
were both subject to the usual rule in this regard, and 
no one need make a separate bargain unless they chose. 
In Cornwall, and also among the miners of the " King's 
Field " in Derbyshire, and in the " Forest of Dean," the 


lord of the soil was usually considered as entitled to 
one-fifteenth of the gross ore-yield of each shaft sunk 
by a "bounder," said ore being "delivered at the 
mouth of the pit." As high as one-tenth of the ore, 
and as low as one-twentieth, have been given in the 
tin-mining districts. 

The right to a "bound" was inheritable property, 
and might be transferred by sale ; but neglect to work 
it caused forfeiture to the owner of the soil, or, by de- 
nouncement, to another miner. The landmarks of the 
" bound " must be renewed annually, and kept distinct 
and in good condition. This reverence and care for 
landmarks is a characteristic of all law-abiding and 
mighty races; and the varied customs by which the 
boundaries of districts and kingdoms, and changes in 
the ownership of tracts of land, were fixed in the memo- 
ries of men, are highly curious and deeply interesting. 
In ancient times the " thoths " or tribal landmarks 
were often burial-mounds of wise chieftains and puis- 
sant warriors who still guarded the frontiers. On the 
border-land, national games, annual fairs, and public 
assemblies were held. And, of land transfers, we read 
in the Book of Ruth, " Now this was the manner in 
former time in Israel, concerning redeeming, and con- 
cerning changing, for to confirm all things: a man 
plucked off his shoe, and gave it to his neighbor, and 
this was a testimony in Israel." In the village com- 
munes of our Germanic ancestors, "field and homestead 
passed from man to man by the delivery of a turf cut 
from its soil." The annals of Salem, Mass., state that 
in 1695 a homestead there was transferred by "turffe 
and twigg," J an unconscious survival of the customs of 

1 See Dr. H. B-. Adams: Germanic Origin of New- England towns. 
Johns Hopkins University Studies, 1st series, Local Institutions. 


those forest-villages whose freemen dwelt around their 
moot-hills, or gathered for council beneath the sacred 
oaks of the Odenwald. Other races, too, have trans- 
ferred land with similar formalities : when, in 1670, the 
Raritan Indians made their final sale of Staten Island 
to Gov. Lovelace, they " brought a branch of every sort 
of tree and shrub that grew on the island, for a sign ; 
reserving only two species used in their basket-work." 

Transfers of mineral lands, since the dawn of history, 
have been accompanied with quite as much formality 
as that attending the transfer of agricultural property, 
or of holdings in tribal community lands. The miners 
of the California camps showed as much anxiety to 
have distinct landmarks and bounds as did the Corn- 
ish and the Thuringian miners of centuries ago ; and at 
least once, as late as 1856, a transfer of mining-property 
in California was completed by the gift, before witnesses, 
of a handful of gold-bearing gravel from the claim. 
The man who did this was a miner, whom the writer 
met as prospector many years after. " Why did you do 
it?" we asked : " was not verbal possession sufficient?" 

"Mebbe so : but my father, and his father before him,, 
always gave a bit o' land away to wind up a bargain ; 
an' the rule's good for a mi nin '-claim, I'll allow." 

Leaving, however, for subsequent chapters, an analy- 
sis of the land laws and customs of modern mining- 
camps, we return to the customs of the tin-miners of 
Cornwall, in many particulars so similar to those adopted 
centuries later by the free miners of the Pacific coast. 
The size of their " tin-bounds," so carefully marked out 
and set apart, varied greatly according to the old Cornish 
rule. It must be "reasonable," but uniformity does not 
seem to have been thought essential; the point being to 
include sufficient surface to give space for proper work- 


ings. The entire system of " taking up claims " and 
securing them, in the Cornwall districts, during the six- 
teenth, seventeenth, and eighteenth centuries, was pre- 
cise and effective, and "probably," as one of the English 
law-reports says, " was the law of an extinct kingdom 
of Cornwall." 

The Cumberland silver-miners in the time of Eliza- 
beth had special legal privileges, and the justices of 
assize went there in their circuit. This was one of the 
"royal mines," owing to its proportion of silver. 1 They 
do not seem to have had a court of their own for 
mining-cases ; but the " smelters, refiners, and miners 
held public meetings," as recorded by Bushell in 1641. 
Their local customs were much the same as in Cornwall. 
Their " tolls " were paid, however, directly to the sove- 
reign. In Cornwall such dues were paid to the duke, 
whenever such a nobleman existed. 

The Duchy of Cornwall was created in the fifteenth 
year of Henry III. Edward III. made his son the first 
Duke of Cornwall, and gave him "all profits of the 
court of stannary and of the mines." Slowly, and with 
great difficulty, the ancient tenures and privileges of 
many of the tin and copper miners were lessened and 
abridged; and so it soon came to pass, that different 
degrees of tenantcy were recognized. In the most im- 

1 The well-known definitions of Blackstone and Plowden need not 
be quoted here. But that quaint and rare book, " A Just and True Re- 
monstrance of his Majestie's Mines-Royall to His Majestie," published 
in 1641, contains a " declaration of learned lawyers what a Mine-Royall 
is, according to presedents," signed by the king's sergeant- at-law, and 
thirty other jurists. They say, " Although the gold or silver contained 
in the base mettall of a mine in the lands of a subject bee of lesse valew 
than the baser mettall ; yet, if the gold or silver doe countervaile the 
charge of the refining, or bee of more worth than the base mettall spent 
in refining it, this is a Mine-Royall, and as well the base mettall as the 
gold and silver in it, belongs by prerogative to the crowne." 


portant and numerous class, the bounds came to be 
fixed, or at least re-examined, each seven years, and 
re-allotted by an assession court. In the " Caption of 
Seizin " of the manor of Tewington, in the time of Ed- 
ward III., there is a list of free tenants who hold " in 
socage " tracts of from five to twelve acres apiece, and 
pay " toll-tin " upon the product of all shafts they sink. 
Besides these miners, there were, so states this caption, 
" free conventionaries," or miners who held and worked 
much smaller tracts on the seven-year basis; and the 
sort of land-tenure system which prevailed in these 
peculiar " conventionary holdings " was a highly inter- 
esting "survival" of ancient Keltic forms analogous to 
those of Brittany. Concanen's special report of the 
English law case of Howe vs. Brenton describes the 
system in full. 1 

In the lead-districts, the most interesting local insti- 
tution was the bar-mote court, and its executive officer 
called the "bar-master." It was his duty to do justice 
between miner and miner, between miner and " adven- 
turer," and between all the miners and the lord of the 
manor. The "adventurers" were what the Western 
miner calls "prospectors;" and they have played a very 
important part in English mining-history, developing 
the richest of mineral districts by their skill and energy. 
Local law in the lead-districts awarded to the finder 
" the largest share " of a new mine. Disputes were 
tried at the bar-mote ; and over this court the deputy 
stewards presided, and the bar-master was present. A 

i Mr. Frederick Pollock, in " The Land Laws" (English Citizen Series: 
Macmillan & Co., 1883), speaks of ancient Cornish laws, and of these 
" conventionary " seven-year holdings (pp. 49, 204). He says that in 1844 
certain conventionary tenants of the Duchy of Cornwall were enfran- 
chised, and does not know whether or not other examples of this ancient 
tenure still remain. 


jury was summoned, composed of miners, and questions 
were tried before them. Arrears of the duties of " lot 
and cope " were properly presented by the officers of 
the manor. 1 In modern times English law-reports show 
clearly the continued existence, and the recognition in 
mining jurisprudence, of most of the customs and local 
usages of tin, lead, and copper miners, alluded to in the 
preceding pages. Local customs, as modified by Acts 
of Parliament, are still in force in Cornwall, Derbyshire, 
and other mining-districts. 

Throughout England the rule has held good, that 
mining requires much knowledge, skill, and special 
training ; creating in the past a constant tendency tow- 
ards separate courts, towards denial of the jurisdiction 
of the lower civil courts, and towards a more direct 
dealing with higher courts of appeal. The Cornish 
stannaries court of to-day is one of the survivals of this 
long-continued struggle, and so is the bar-mote court 
of the lead-districts. In the rocky and agriculturally 
worthless regions, where for many centuries the entire 
community was dependent upon mining for its liveli- 
hood, the miners evidently governed themselves long 
before there was any Duke of Cornwall or manorial 
claims : they recognized the liberty of the prospector and 
the sacredness of the claim-stake, in that remote past 
when " stream-tin " gathered from the river-channels 
was the chief mineral resource of the region, and the 
veins of ore were only superficially worked. To such 
conclusions, at least, the nature and evident antiquity 
of the mining-customs of Cornwall would certainly 
point. They seem to be fragments and remains of 
ancient laws adopted in meetings of freemen, for the 

1 Arkwright vs. Cantrell, 7 Ad. and E. p. 5G5. 


purpose of securing equal rights, and imposing equal 
duties upon all within their jurisdiction. As a promi- 
nent California mining-lawyer once said to the writer, 
" Those old Cornish miners, with their local freedom 
and self-government, deserved ' to have been born four 
centuries later, as prospectors in the Sierra placers." 



THE first English settlers in America hoped to find 
great mineral wealth ; and the royal charters in most 
cases reserved " all mines," and claimed as rent one-fifth 
of all gold or silver ore, " to be delivered free of charge 
at the pit's mouth." Massachusetts, Connecticut, Vir- 
ginia, Maryland, Pennsylvania, and others of the early 
colonies, had clauses of this kind in their charters. 1 But 
the " gold-ores " invariably proved worthless, much to 
the disappointment of the merchants in the Virginia and 
the Massachusetts companies, who had hoped for other 
resources besides those of fishing, trading, and farming. 
The "rights-royal" never amounted to any thing; and, 
in the process of time, mining-jurisprudence came to be 
founded upon common law merely, the mineral being 
held to belong to the soil, and conveyed by one and the 
same title with agricultural lands. 

There is little of value for our investigation in the 
scattered attempts at mining in Colonial and Revolution- 
ary days. The first on record appears to be that men- 
tioned in Stith's History of Virginia, the opening of 
an iron mine in 1622 at Falling Creek, near James 
River. The next was probably in New England, where 
Governor John Winthrop in 1657 obtained a license 

1 Bainbridge, "Law of Mines," chapter ii. 



to work " mines of lead, tin, copper, or any mineral," 
and to "enjoy forever" said mines, and all woods, 
lands, and things necessary for their workings, " within 
two or three miles." He proceeded to prospect exten- 
sively ; and in 1661 received a special grant of mineral 
lands near Middletown, Connecticut, where he opened 
and worked mines. President Stiles's Diary says, speak- 
ing of the " Governor's Ring," ,a mountain in East Had- 
dam : " Governor Trumbull has often told me that this 
was the place to which Governor Winthrop of New 
London used to resort with his servant, and spend 
three weeks in roasting ores, and assaying metals, and 
casting gold rings." The mine was worked to a depth 
of a hundred and twenty-five feet, with extensive drifts. 
The abandoned shaft was discovered in 1852, and after- 
wards re-opened, though unprofitably. The first blast- 
furnace in the New-England Colonies was built by Lam- 
bert Despard at Mattakeeset Pond, Plymouth County, 
Massachusetts, in 1702. The copper-miners of Simsbury, 
Connecticut, received their charter in 1709. Arent 
Schuyler began to work the cupriferous ores near the 
Passaic, seven miles from Jersey City, in 1719. Ac- 
cording to the centennial address of Mr. D. D. Field, 
Middletown, Connecticut, in 1853, a lead-mine was 
worked in that town long before the Revolution ; and 
from May, 1775, till February, 1778, this mine was 
operated for the citizens " by a committee of three, 
Jabez Hamlin, Mathew Talcott, and Titus Hosmer." 

Such efforts, of which there were many, were merely 
business or war enterprises, and had little or no organiz- 
ing influence upon society. Somewhat more than this, 
however, may be said with justice of some of the famous 
gold-camps of the South, early in the present century. 
In Spottsylvania County there were numbers of placers, 


and from one claim twenty feet square ten thousand 
dollars was taken ; in Louisa County, one placer-claim 
yielded seven thousand dollars ; and near the Rapidan 
over forty thousand dollars was taken out by a miner 
from his placer property. These instances are noted in 
Mr. Taylor's report (1867) on " Gold-mining East of the 
Rockies. " There were also some famous mines in Buck- 
ingham County, Virginia, and others in Abbeville 
District, South Carolina ; but those of Rowan and 
Mecklenburg Counties, North Carolina, and particu- 
larly the placer-mines upon the tributaries of the Great 
Pedee, produced hosts of prospectors, who took up 
claims and worked mines according to a sort of local 
law, subject, however, to the jurisdiction of the county 
authorities. Wheeler's History of North Carolina gives 
interesting illustrations of this mining-era and its ex- 
citements; its crude organization, its "big nuggets" 
(that of 1803 weighing twenty-eight pounds), its cul- 
mination, and its decay. West of the Blue Ridge, along 
the famous French Broad River, a number of placer- 
miners worked for half a century on small claims held 
by possessory rights. The Georgia and Alabama gold- 
miners had a wider field ; and the operations begun in 
1799, in valleys that De Soto visited, have continued 
with greater or less energy ever since. None of the 
mining-districts of the South possessed any organization 
separate from that of the county, but some of them had 
simple local regulations in regard to the size of claims. 
In one case, that of the Hale mining-tract, Lancaster 
District, South Carolina, over fifty years ago, the system 
had fostered individual freedom, though to the great 
detriment of all the mines. The owner of the land 
allowed any persons to come in, and work where they 
chose, only agreeing to sell all gold found to him for 


sixty cents per pennyweight, when it was really worth 
ninety cents, thus paying a ground-rent of one-third 
the gross yield. The alluvial deposits were, however, 
so rich, that many prospectors accepted the terms. 
They used "pans and rockers," dug holes in search 
for "pockets," worked out the rich places, recklessly 
stripped the mine, and then deserted it. Nothing per- 
manent could come from such a wasteful and destructive 
system. But as soon as gold was discovered on the 
Pacific coast, all these old camps of the South sent well- 
trained miners and prospectors to the new placers ; and 
there they found that larger freedom in which local 
mining-institutions were rapidly developed. 

The attitude of the state and national governments 
towards mining-interests affords a much more important 
theme than is offered by any of the Southern gold-dis- 
coveries. Long before the Revolution, most of the Col- 
onies had recognized the rights of land-owners over all 
the contents of the soil; so that when, in 1785, the Con- 
tinental Congress reserved one-third of the gold, silver, 
lead, copper, and some other minerals found* within 
the States, the principle aroused the greatest opposition. 
It was only an extension of the " crown-right " idea of 
the civil law ; but the rights so long recognized by im- 
memorial custom and prescription in Germany, the Elec- 
torates, France, Portugal, Spain, and other dominions 
of Europe, seemed so "un-American," that their asser- 
tion was soon abandoned. 

The United States next tried the plan of attempting 
to hold, and lease to the highest bidders, the salt-springs 
and lead-mines. After the acquisition of Louisiana, 
lands containing lead ores were reserved from sale ; and 
in 1807 the President received authority to lease them 
for five years, in tracts of not more than three miles 


square, afterwards reduced to one square mile, the 
return of six per cent of the ores being required. 
Under this system the first lease was issued in 1822; 
but after 1834 many of the miners and smelters in 
Michigan, Wisconsin, Iowa, Missouri, and Arkansas 
positively refused to pay rents, because there had 
been a vast number of fraudulent entries of mineral 
lands as agricultural lands, and the system appeared 
unjust. By 1846 this lease-system became untenable, 
and was definitely abandoned. 1 Acts of Congress then 
restored to the several States the right to sell their salt- 
springs, and also opened to pre-emption as public lands 
the hitherto-leased tracts in the lead and copper mining- 

The history of the disputes, protests of pioneers, and 
litigations among rival claimants, which led at last to 
the abandonment of the lease-system, is long and highly 
interesting. It extends over nearly the first half of the 
century. The numerous complications which arose out 
of the entangled condition of Spanish and French land- 
titles in the provinces of upper and lower Louisiana, 
involved the best mining-districts of Missouri and Iowa, 
and test-cases were fought from court to court until 

1 The Annual Report of the Secretary of the Treasury for 1865 says, 
speaking of the Pacific Coast mineral lands, " A system of lease-hold, 
. . . after the lessons which have been taught of its practical results in 
the lead and copper districts, cannot, of course, be recommended." 

The course of United-States legislation up to this point can be synop- 
sized as follows: Ordinance, May 20, 1785, reserved one-third of the 
gold, silver, lead, and copper; Act of March 3, 1807, dealt with lead- 
mines; Act of March 3, 1829, authorized their sale in Missouri; Act of 
Sept. 4, 1841, excluded salines and mines from pre-emption; Case of 
U.S. vs. Gear, 1845, confirmed the previous act; April 18, 1846, mineral 
lands of Isle Royal, Lake Superior, reserved; July 16, 1846, lead-mines 
in Illinois, Arkansas, Missouri, and Iowa, offered for sale at two dollars 
and a half per acre ; March 1, 1847, lands in Lake Superior district offered 
at five dollars per acre. 


settled by the highest authority in the land. The lead- 
claims of upper Louisiana introduced hitherto unknown 
elements into our jurisprudence. Our government, act- 
ing in accordance with the law of nations, had agreed 
to recognize all lawful titles to lands in the ceded 
territory. 1 

Owing to these causes, it happened that American 
lawyers who settled in New Orleans and St. Louis early 
in the century found that a knowledge of French and 
Spanish law was essential to success. As regards land- 
titles, the courts of Louisiana have decided that the 
colonial Spanish government of such rulers as Galvez, 
Miro, and Carondelet, recognized verbal as well as writ- 
ten grants. The grants made by French officers during 
the ownership of Louisiana by France were never con- 
tested, but most of the Spanish grants were. Land- 
grants in some cases were referred for final decision to 
the captain-general of Cuba, within whose jurisdiction 
were Florida and Louisiana. The Indians were assigned 
one square league about their villages, including the 
town-site. A primitive land-title existing in any tribe 
was never recognized. Absolute ownership in their 
village-lands was not allowed, severe restrictions being 
placed upon its sale and alienation. If all died or re- 
moved, the lands reverted to the crown. A simple order 
from the governor was sufficient to establish these reser- 
vations. It thus followed that grants by Indian tribes 

1 Among the important decisions that bear upon Spanish and French 
claims, Indian rights, mineral lands, and United-States title, are the 
following: Sanchez vs. Gonzales, Louisiana Rep., 11 M., p. 207; Le Blanc 
vs. Victor, 3 L., 47; Landry vs. Martin, 15 L., 1; De Vail us. Choppin, 15 
L., 566; Murdock vs. Gurley, 5 R., 457; Reband vs. Nero, 5 M.; Moes vs. 
Gilliard, 7 N. S., 314; Brooks vs. Norris, 6 R., 175; Breaux vs. Johns, 4 A., 
147; Choteau vs. Molony, 16 How (U.S.), 203; Wilson vs. Smith, Yeager 
5, 347 (Mo. Rep.); Delassas vs. United States, 9 Peters, 117. 


to white men anywhere within the Louisiana territory 
required acceptance and confirmation from the Spanish 
authorities. A noted case which reached the Supreme 
Court in 1853 decided the ownership of the Dubuque 
lead-mines adversely to the claims of those who held 
under title from scheming Julien Dubuque, the old 
Indian trader and pioneer, who, in 1788, had received 
from the five chief villages of the Fox Indians in coun- 
cil assembled the gift of an illy defined tract of nearly 
one hundred thousand acres of land. 1 Albert Gallatiu 
also made a report to the President upon the Dubuque 
claims, saying that the tract was undoubtedly govern- 
ment land. In 1832 there was trouble among the rival 
claimants to the mineral soil ; and in 1833 troops were 
called into requisition, who drove off one party, and 
burned their cabins. The government then leased the 
land to the miners. 

The St. Vrain concession of mineral lands was de- 
cided to have been perfected under the requirements of 
Spanish law; and so to be outside of the jurisdiction 
of the act of 1807, creating a board of commissioners for 
the re-adjustment of land-claims. The "inchoate title" 
of the descendants of " Pierre Charles Dehault, Knight, 
Lord of Delassus Luzieres, and Knight of the great 
cross of the royal order of St. Michael," covered a square 
league on St. Francis River, Missouri, containing valu- 
able lead-mines, which had been worked by prehistoric 
miners, and were re-opened by the knight of many titles 
in the days of Baron Carondelet, who purchased, in the 
name of the Spanish Government, thirty thousand pounds 

1 Le Sueur, the French explorer, discovered mineral on this Dubuque 
tract in 1700 or 1701. The earliest notice of mines in the North-West, 
however, is contained in the report of Jesuit missionaries, who in 1G60 
found copper-ore in the Lake-Superior region. 


of lead annually for five years. This title, legal as far 
as it went, but never made complete, was confirmed by 
the United States. 

But while the courts and the lawyers were deter- 
mining the status of hundreds of varying claims under 
Spanish and French titles, the region was being settled 
by hardy and energetic pioneers, long before the 
United-States Government had arranged to sell lands. 
The immediate result was the formation of " squatter 
associations," to take up, place on record, and hold 
land-claims. Professor Macy of Iowa College, in a 
paper upon "Institutional Beginnings in a Western 
State," read before the Historical and Political Science 
Association of Johns Hopkins University, Nov. 2, 1883, 
and since then published as No. 7 of the second series 
of the "University Studies in Historical and Political 
Science," has well described the claim-laws of these 
agricultural settlers, whose guiding principle was to 
give each man his fair and equal chance. 

In the mineral region of Iowa, we find early organi- 
zation. Professor Macy tells us, that June 17, 1830, 
the Dubuque lead-miners assembled, and appointed a 
committee of five to draught regulations, which were 
unanimously adopted. They agreed to live under " the 
code of Illinois," with the following additions : 

"ARTICLE I. That each and every man shall hold two hun- 
dred yards square of ground, working said ground one day in six. 

" ARTICLE II. We further agree, that there shall be chosen, by 
a majority of the miners present, a person who shall hold this 
article, and grant letters of arbitration, on application having been 
made; and that said letters of arbitration shall be obligatory on 
the parties concerned so applying." 

These simple laws, thus adopted by the lead-miners 
in public meeting, form the earliest, and for thirteen 


years the only, local code of Americans on the soil 
of Iowa. In 1833 the Indian title to these mineral 
lands was extinguished, and within a year Dubuque 
contained two thousand inhabitants. May 20, 1834, 
the miners tried and condemned a man for murder, 
and a month later policed the town, and executed 
him, after the Governor of Missouri and the Presi- 
dent of the United States had been applied to for 
pardon by the prisoner's friends, and had replied that 
"the pardoning power rested with those who passed 
the sentence." 

The early local history of this interesting mineral 
region shows most clearly the working of forces which 
reached their fuller development only in the compara- 
tive isolation of later camps. Lead-miners of Iowa, tin- 
bounders of Cornwall, early silver-miners of Germany, 
all recognized the claim-stake, dwelt under equal laws 
of their own creation, and tried and punished their 

Furthermore, as we have observed in the course of this 
chapter, the lead and copper miners west of the Missis- 
sippi came into contact, in many cases, with old Span- 
ish grants and concessions. Here, in the heart of the 
continent, midway between Lakes and Gulf, the Ameri- 
can miner first met the Spanish influence that he was 
to find once more, in far stronger forms, on the shores 
of the Pacific. Americans had no sooner controlled the 
lead-regions of Dubuque and St. Joseph, than they 
pushed westward, in the years preceding the great gold 
discoveries of California; there to meet a current of 
institutional development that had come from Spain by 
way of Mexico, not by way of lower Louisiana, and so 
had retained far more of its original characteristics. It 
is to this Spanish-American realm that we must now 


turn our attention, in order to understand the elements 
underlying California life, and the conditions that 
favored peculiar local organizations in the mining-camps 
of the Sierra and the Rockies. 



SPANISH rule, and the first attempts of Spaniards to 
mine in the New World, are of especial significance by 
reason of sharp institutional contrasts to the forms of 
Germanic development; also because of the influence 
subsequently exerted upon the South- West, and the Pa- 
cific coast of the United States. The growth of the 
Spanish system of government, and the complete sepa- 
ration of mining-courts from civil courts that for a time 
existed in Mexico, form an essential part of our investi- 

The first Spanish colonists were lazy and lustful, 
reckless and turbulent. They desolated the fairest 
isles of the West Indies, they rebelled against their 
governors, and they drove to suicide the unhappy race 
they had enslaved. Everywhere under their system, 
with its strange contrasts of stately indifference and vol- 
canic energy, the Spaniards forgot their own Castilian 
proverb of awful significance, " Dios consiente pero no 
para siempre" (God may consent, but not forever). 

The only judicial officer of these early colonists was 
the alcalde, a district judge, who possessed a great 
variety of powers, as will be shown in a subsequent 
chapter. The first mention we find of this officer is at 
Cuba, early in the sixteenth century. The first mili- 



tary rule of Mexico brooked no interference from local 
officers of any sort ; but Cortez soon developed great 
administrative skill and energy, and rapidly introduced 
the local institutions known to Old Spain. 

It is, however, to a colony and a mining-camp that 
we must look for the best Spanish example of elected 
officers and local organization. Early in the sixteenth 
century, about a hundred Spaniards, led by Enciso, 
founded the town of " Santa Maria de la Antigua del 
Darien." The afterwards famous Vasco Nunez de Bal- 
boa, roused by some acts of petty tyranny, persuaded 
the colonists to depose Enciso, and elect himself chief 
alcalde, with an assistant and a regidor. A little later, 
in 1514 in fact, some rich gold-placers were discovered 
three leagues from " Santa Maria del Darien ; " and a 
rush to the new mines was the immediate result. Al- 
most at once the miners organized. They elected a 
mining-superintendent and a surveyor of claims, under 
whose supervision and authority plats of ground twelve 
paces square were measured off for each able-bodied 
miner ; no one being allowed to hold or to work more 
than one claim at a time. They paid the royal de- 
mands; but, while the mines lasted, they managed their 
own local affairs with more skill and energy than 
miners of their race have elsewhere displayed. Here, 
in this little camp of Spaniards, a seed of local self- 
government had been planted ; but it could find no firm 
root in national characteristics, and no abiding support 
from national institutions. Instead of springing up, 
bearing fruit, and extending itself to camp after camp 
northward along the Isthmus through Central America 
to the placers of Yucatan and Mexico, its blossom fell 
to the earth unfructified, its stem withered and perished 
in a single summer. 


Permanent social order, and organized self-govern- 
ment, could not develop from the early Spanish placer- 
mining, any more than from the gold-lust of Spanish 
leaders like Cortez and Pizarro. Hither and thither 
through the New World, the freebooters of Spain had 
hastened, searching for traces of gold, as wolves follow 
the scent of smoking blood. Impelled by this passion, 
they hewed paths through tropic forests, crossed des- 
erts, explored unknown seas, illustrated the utmost 
valor, cruelty, endurance, and fanaticism, and unfurled 
the intertwining standards of Rome and Spain at al- 
most the same time in Amazonian and Floridian for- 
ests, in Patagonian and Oregonian wildernesses, and 
over hills of Arkansas, deserts of Arizona, and isles of 
the California pearl-coast. This breathless search was, 
happily, futile : the continents held no more semi- 
civilized kingdoms rich in treasures of gold. By the 
help of slaves, the baffled conquistadores then began to 
develop the mineral resources of New Spain. They 
still sent out expeditions by land to follow such mi- 
rages as the Golden Temple of Dabaiba, and fleets to 
search the North Pacific for the fabled Straits of An- 
nian ; but the fever of exploration had nearly run its 
course. Silver and gold bearing rock soon began to be 
worked with system and success. Humboldt says that 
the annual gold-yield of America, from 1492 to 1521, 
was $ 250,000; from 1521 to 1546, it was 83,150,000. 
In 1545 Potosi began to pour forth its treasures, and f 
the annual yield of gold and silver combined was $10,- 
300,000 for the sixty years after that discovery. The 
ransom of Atahualpa had been 120,000,000. Jacob, in 
his "History of the Precious Metals," says that the 
mining-industry of Europe was greatly stimulated by 
the mining done in America; that, in fourteen years 


after 1516, there were twenty-five rich veins found in 
Bohemia ; and that, between 1538 and 1562, over a 
thousand leases and grants of new mining-ground were 
made by the Bishopric of Salzburg. 

The Mexican system of civil law, as transplanted 
from the overlordships of Castile and Aragon, lasted, 
with few changes, until well into the present century ; 
and its more abiding local forms of administration still 
rule the land that Cortez conquered. The principles 
upon which the colonial possessions of Spain were gov- 
erned, and even the details of that government, present 
remarkable parallels to the complex system of authority 
extended by Rome over her subject provinces. Under 
Spain, all titles, power, and dignity flowed from the 
royal throne, as, under the later Roman system, they 
all flowed from the emperor. The viceroyalties of 
Spain in Peru, Grenada, Mexico, corresponded with 
singular fidelity to the proconsulates and pro-prsetor- 
ships of Syria, of Gaul, and of Spain herself under 
Rome. As, in the Roman world, hardly any two cities 
bore the same yoke, or occupied exactly identical rela- 
tions to the centra] government, whether that of senate 
or of emperor ; so, in the Spanish empire, hardly two 
viceroys had equal rank, or exercised identical powers. 
The most casual observer cannot but seize upon strik- 
ing similarities and instructive contrasts between these 
vast and ultimately unsuccessful colonial empires. 

The Spanish system had a feudal element, in that the 
land, and the Indians as attached thereto, were divided 
among the colonists. This royal gift of soil and people 
was called an encomienda, and first occurred in Hispa- 
niola, extending thence to all the Spanish dominions. 
Cortez made a provisional repartimiento, or division of 
the natives; and this was re-adjusted by a royal audien- 


da, or council. Cruelty, disease, and hard work slew 
them so rapidly, that the greater part had perished be- 
fore they were set free, and given land to cultivate in 
common, as in some of the modern pueblos. 

The system of Spanish civil government extended 
upward from the alcalde of the village to the viceroy 
of the whole territory, all appointed or elected with 
such severe restrictions that matters were in practice 
kept under royal control. The detailed minuteness of 
the administrative affairs in even the most obscure prov- 
inces of Peru or the Indies, that passed under the eyes 
of the king himself, and were decided according to 
his wishes, is something that almost surpasses belief. 
Some choice in village and district affairs was all that 
was left in the hands of the people, until the mining- 
laws differentiated the powers of the system, and the 
local alcaldeship was thus enabled to gain a greater 
dignity and influence. Spiritually, Mexico was divided 
into provinces, sees, and parishes. The visidados, or 
special emissaries of the king, and the " legates of the 
pope," formed ambassadorial links between the Old 
World and the New. 

Government of the towns (pueblos') was, in Spanish 
days, intrusted to a town-council, or ayuntamiento, 
whose head was either a mayores or an alcalde, assisted 
by several regidors (directors) and syndicos (clerks). 
The villages had only an alcalde. In the large towns 
of each district, the municipality chose two alcaldes de 
mesta, to preside over semi-annual councils of the live- 
stock owners. This pastoral custom was carried wher- 
ever Mexican colonists journeyed ; in a modified form it 
survived in California until a few years ago, and still 
exists in New Mexico and the South- West. 

Studying as a whole the civil government instituted 


by Spain, we can safely affirm that no nation has ever 
possessed a nicer sense of the theoretical proportions 
of aristocratic rule, or brought to the difficult labors 
of colonial government a more dignified and stately ad- 
ministrative genius; but the fatal facility with which 
department was added to department, and wheel to 
wheel, made the whole cumbrous machinery break down 
at last beneath its own weight. It was an ingenious 
mechanical contrivance, not a vital organism. Pulleys, 
levers, and speaking-tubes, not arteries, nerves, and mus- 
cles, set the mandates of the central government in 
operation throughout the system. Hence its weight 
and increasing weakness, its decay and final failure, its 
giant wrecks rusting in solitude on the hills of every 
Spanish-American province, its mournful problems, as 
of misgoverned Cuba. This overloaded mechanism of 
government reaches its climax in the mining-laws of 
New Spain, more particularly of Mexico, which con- 
stitute the most unique, laborious, and complicated sys- 
tem of special jurisprudence ever developed on this 

In February, 1774, the miners of Mexico petitioned 
the King of Spain, by whose orders a perpetual corpora- 
tion was established, embracing all the mine-owners, and 
ruled by a great tribunal consisting of an appointed 
president, an appointed director, and three elected depu- 
ties. Acting under this central organization were local 
tribunals, one in each province. The system proposed 
was to have jurisdiction in all cases which concerned 
the mines or the miners, and it was at first received 
with universal enthusiasm. One of the first things 
done was to found a college of mines on an immense 
scale in the city of Mexico. Alexander von Humboldt, 
in his " Political Essay on New Spain," describes this 


Real Seminario de Mineria as it existed in the city of 
Mexico in 1803. The director of the college had then 
been collecting statistics from the thirty-seven Depu- 
taciones de Minas, and from these reports he had per- 
fected a mineral-map for the use of the supreme college 
or head tribunal. A great banking-system, whose rami- 
fications were to extend to the remotest mining-town, 
was early organized. The tribunal, soon after its crea- 
tion, had formulated a code of laws for the government 
and regulation of mine-towns, mine-owners, and mine- 
laborers. In 1783 this code received the full approval 
of the king and the grand council of the Indies. 1 Thus 
the mining-interests of Mexico were separated from 
direct control of the civil authorities ; and the powerful 
corporation created in accordance with the petition of 
the miners received rights of separate courts, and privi- 
leges and immunities almost royal in scope and nature. 

No " mine-town " had a right to vote at any election 
for a tribunal deputy, unless it contained "an inhabiting 
population, a church, and a curate or deputy, a judge 
and deputy of mines, six mines in actual working, and 
four reducing-establishinents." 

Paternal government over the mines and the miners 
was developed to such an amusing and exasperating 
degree, that some of its manifestations seem almost 
beyond belief. Supervision was never reduced to a 

1 This great Council of the Indies was created by Ferdinand in 
1511, but was not fully organized till thirteen years later under Charles 
the Fifth. It was a plan much favored by that wise statesman, Cardi- 
nal Ximenes, whom Sir Arthur Helps has compared to the English Earl 
of Chatham. The Recopilacion de las Leyes de las Indias declared that 
this council should consist of twenty-two councillors, presided over by 
the king himself as perpetual president, and of foiir secretaries. It was 
given supreme jurisdiction throughout Spanish America and the Philip- 
pines. As a rule, the councillors were men who had seen service as 
viceroys or captains-general in the New World. 


more exact science. This royal ordinance of 1783 
declares that all cases must be decided " without any 
of the usual delays, written declarations, or petitions of 
lawyers." It sets apart the refuse ore-heaps and " tail- 
ings " as " support for the widows and orphans, old and 
helpless." It forbids reduction of wages, fixes rations, 
commands registration of laborers with a view to pre- 
vent their leaving a mine, and orders that the price of 
articles used in the mines shall be fixed by law so that 
" no undue profit " shall be taken by any one. It also 
prohibits all persons from making demands of the work- 
men for alms, this being aimed at the beggars and the 
mendicant friars of the time. One of the most interest- 
ing provisions is to the effect that " persons going about 
to search for mines shall be allowed to have one beast 
to ride on, and one to carry their bedding and provis- 
ions, and shall not have to pay for their pasture, either 
on public or private property, whether it be customary 
or not to pay for the same." The reason for this pro- 
vision is evidently to be found in the royal rights over 
mineral ground. Whoever discovered a new mine was 
an unofficial "king's messenger;" he was increasing the 
revenues of the crown. The prospector was, therefore, 
a more privileged charactei in Mexico during the days 
of Washington, and under the rule of pleasure-loving 
Charles the Third of Spain, than he is at the present 
time in any spot on the American Continent. 

The code ordained by the miners' tribunal further 
provided for certain local officers, called disputaciones, 
to reside in mining-towns as arbitrators in difficulties 
respecting mining-property, and also to discharge the 
very peculiar duty of "admonishing extravagant, waste- 
ful, or gambling miners." If this warning was not 
heeded, the tribunal had power, which it often exer- 


cised, of "appointing a guardian for said miner, and of 
limiting his expenditures." In ways like this the 
mining-code of Mexico descended to the most minute 
particulars and trivial details of daily life, regulating 
the laborer's food, attire, and hours of labor ; forbidding 
" dice, cards, and cock-fighting," still besetting sins of 
the Mexican miners ; punishing idlers and vagabonds ; 
and seemingly making some provision for every possible 

The use of a disputaciones, or arbitrator, was a favor- 
ite idea of Mexican jurisprudence. The powers of this 
office were, at its abolishment, transferred to the alcalde- 
ships. The disputadoneS) under this later form, was 
long in use in California. The same idea sprang up 
in the early " mining-courts " of the American mines, 
as we shall hereafter see ; but the " arbitrators " of the 
miners had little historical connection with the Spanish 
disputaciones, except that this particular function of 
the early alcalde-courts might have aided to suggest the 
plan in some few of the mining-camps. 

That section of the Spanish mining-laws which orders 
cases to be decided " without delay " is peculiarly char- 
acteristic of all mining-communities. Time is precious; 
every one is in haste ; the poor are about to be made 
rich, the rich about to become extremely wealthy. The 
world over, all mining-codes in whose making the miners 
themselves have had a hand are certain to ignore tech- 
nicalities, urge swift decisions, and laugh to scorn each 
fine-spun argument. 

The laws of Mexico, as of Spain, recognized two dis- 
tinct interests in land, surface and mineral ; interests 
not only legally distinct, but even transferred by sepa- 
rate and differently worded titles. One was la propie- 
dad del suelo, the other was la propiedad de la mina. 


The first, the right of pasturage and of agricultural use, 
was transferred or conveyed from the authorities of the 
province, by sale, by absolute gift, or by gift conditioned 
on settlement ; the second, the right to dig for minerals, 
was obtained by special gift of the king himself, by 
registration of discovery, by denouncement of another 
mine for "non-wo'rking" and its consequent forfeiture, 
or by purchase subject to special royal taxes and restric- 
tions. An agricultural grant left the entire right to 
minerals in the hands of the Spanish Government, which 
right passed thence to Mexico at the Revolution. The 
right of miners to enter on private domains was abso- 
lute, nor was it conditioned upon payment of damages. 
The ideas involved in the system were, so far as re- 
garded mineral lands, somewhat as follows : legal title 
complete in the crown; absolute right of the public to 
search for mineral, and work ungranted mines ; right of 
eminent domain over mining-lands and mining-interests 
of every sort, such as in wood and water, vested in the 
government; rights of the crown to confer private 
ownership; ordinary mining-rights, valid only during 
the life of the reigning king, and a renewal necessary 
at his death. 

Many of the agricultural grants made by Mexico to 
citizens of Alta California were found, after the con- 
quest, to contain mineral wealth ; and in some cases such 
lands were entered upon by prospectors, and claimed as 
being public lands, 'in the sense of the Mexican mining- 
law, and so having passed by conquest to the United 
States. A knowledge of the Spanish laws thus became 
necessary to every American lawyer in California, as 
once before to the lawyers of Louisiana and Missouri, 
and as now in Arizona and New Mexico. They were 
obliged to have some acquaintance with the codes and 


commentaries of the famous Spanish jurist Gamboa, 
with the ordinance of 1783, with subsequent acts of the 
Tribunal de Mineria, and with various decrees of Co- 
monfort, Juarez, and other Mexican presidents, and acts 
of different Congresses. 

The greatest alterations which have been made in the 
mining-laws were shortly after Mexican independence 
was established. The mining-deputations were brought 
more under the control of the government; mining- 
courts, consisting of a lawyer and two mine-owners, were 
established in each one of the States, to serve as a court 
of appellate jurisdiction ; lastly, the rights of foreign- 
ers to purchase mines was recognized, though with re- 
strictions. This was in 1823. At a later period, all 
" contentious jurisdiction" was transferred to the civil 
courts, and the separate mining-courts lost the greater 
part of their authority. Successive modifications of the 
laws respecting foreign miners, and the influence of 
English, German, and American capital and energy, have 
produced many changes, of late years, in the northern 
Mexican States. The local customs and district laws of 
that region are being superseded slowly but surely by 
American mining-usages. 1 

The condition of Mexican mining and civil law at the 
present time is, however, foreign to our investigation. 
Our inquiries have been only for the purpose of ascer- 
taining to some extent the spirit of Mexican institu- 
tions, so as to understand more clearly the nature of 
their influence upon California, and the modiications 
they necessarily underwent. Before American pioneers 

1 " This Province [Sonora] is beginning to adopt American mining- 
customs" (private letter from the late Manuel M. Corella, professor at 
the University of California, and afterwards an eminent Arizona law- 
yer; written in 1880). 


captured California, before American miners had organ- 
ized a single camp, three institutions of Spanish origin, 
the mission, the pueblo, and the alcaldeship, existed in 
the coast-region, and deserve our careful study. They 
serve as a background for the fuller activities of the 
American period, and they help to explain the local 
political difficulties that preceded the organization of 
State government. The pueblo and the alcaldeship 
were transferred, with slight modifications, from the 
limits of Mexico ; the " mission " was an institution that 
gained for a time, in the provinces of California, an in- 
fluence almost as overwhelming as that it so long held 
in parts of South America under the Jesuits. 



THE institution known in California as the " mission " 
was, from one stand-point, missionary and ecclesiastical ; 
from another it was industrial and political. There was 
a decided flavor of worldliness, not to say greed of gain, 
mingled with the undoubted zeal and holiness of the 
early priests. In all the mountainous wilderness from 
Cape St. Lucas to Cape Mendocino, their missions occu- 
pied the choicest spots in the fairest valleys. They 
chose for soil, water, climate, sightliness, commanding 
position; and subsequent years have only confirmed 
their almost unerring judgment. The cash value of each 
convert to the gardens and pastures of the mission's 
broad domains was never overlooked: Christianized 
Indians meant laborers and vassals. The California 
natives of whom, in 1721, Collier wrote, " Every family 
hath an entire legislature, and governs at discretion," 
were brought into a subjection only paralleled in Para- 
guay. Students of economic subjects could not fail to 
find much of interest in the internal management of 
these famous missions of Alta (or Upper) California, the 
outgrowth of those established by the Jesuits in the 
peninsula of Baja (or Lower) California, where Fathers 
Ugarte and Salvatierra planted Loreto, Oct. 19, 1697. 
Within seventy years the priests had four flourishing 
missions and many minor settlements along the shores 


of the Gulf, then known as the Red Sea, or the Sea of 
Cortez (el mar Cortez). Soldiers under their command 
mapped out the surrounding region. Humboldt in his 
"New Spain" describes early conflicts of secular and 
ecclesiastical authority, terminated by the Spanish 
courts, which issued a cedula real, or writ, and put 
the entire detachment at Loreto under the orders of the 
priests. This famous shrine was soon enriched by pearls 
from the Gulf and silver from the mines : it possessed 
embroideries made by the hands of the Queen of Spain, 
and paintings by Murillo and Velasquez. In 1719 Father 
Ugarte built a missionary ship from timber dragged two 
hundred miles through the gray mountains and barren 
sand-dunes, there being no forests nearer to Loreto. 
At last, in 1767 the Jesuits were expelled, giving place 
to their successful rivals the Franciscans ; and the fol- 
lowing year they left the adobe-built missions of Lower 
California, the gardens, young orchards, and semi-civili- 
zed converts of their faith. The first settlement, the 
first church, and the first ship built in the California 
provinces were the result of Jesuit enterprise. The 
work they did was the direct means of attracting the 
attention of Spain to Upper California, and led to imme- 
diate efforts for its colonization. The leaders changed; 
but the movement which culminated at Mission Dolores 
on the Bay of San Francisco received its primary im- 
pulse when Fathers Ugarte and Salvatierra, with nine 
soldiers, set up their rude cross by the sheltered cove of 
sultry Loreto. 

In July of 1769, that fateful year which witnessed 
the birth of those mighty leaders of opposing armies, 
Napoleon Bonaparte and the Duke of Wellington, 
Father Junipero Serra, the Franciscan apostle, a man 
of singular zeal, piety, asceticism, and administrative 


ability, founded San Diego, and began the mission 
system in Alta California. 1 His successors completed 
its ecclesiastical conquest, and brought the coast- tribes 
into full subjection. 

The missions in their prime were little more than 
Indian reservations, managed, it is true, with great 
skill and marked industrial success, but entirely incapa- 
ble of making citizens out of their Indian occupants. 
From the days of the good Las Casas, Spain and Mex- 
ico had honestly tried to do their best by the Indians. 
The laws of Mexico gave them many rights which in 
practice they were utterly unable to obtain. A decree 
of Philip II., in 1571, ordered that the property of 
Indians should never be sold except at public auction, 
before the alcalde, after thirty days notice. Later 
Spanish laws created additional safeguards against the 
loss of their common or other lands. The Recopila- 
cion de Indias says explicitly that they cannot be sold 
nor alienated (" Por ningun case se les pueden vender ni 
enagenar "). The royal Audencia of Mexico, adopted 
in 1781, enforced with additional legislation the same 
idea. The object of all these regulations was purely 
beneficent, to interpose an insuperable barrier against 
all attempts of the whites to strip the newly emanci- 
pated Indians of whatever property they might receive 
from the government, or accumulate by their own in- 
dustry. Their rights in the common lands of a pueblo 
could not be sold or rented ; and this was good law in 
California, for some time after the American occupation. 2 

1 Father Serra founded six mission colonies, gathered into strict dis- 
cipline over seven thousand Indians, died Aug. 28, 1784, and was buried 
at San Carlos, Monterey, beneath the church-altar. Father Francisco 
Palou, his friend, associate, and biographer, wrote Serra's life at Mis- 
sion Dolores, the first book written in California. 

2 Sunol. vs. Hepburn, 1 Cal. Rep., p. 224. 


But in California, as in Mexico, the actual rights pos- 
sessed by the Indians were less than their legal rights, 
even during the sixty years of the missions' undisputed 
control. For these slaves of the soil, that civil author- 
ity represented by commandantes, ayuntamientos, and 
other officials of pueblo, presidio, or province, only 
existed as casual apparitions, gorgeous and stately as 
the bandits of an Italian opera. Very justly says 
quaint old Nicholas Mill, in his " History of Mexico," 
"In California the monks do rule the country." In 
the early mission days, they discouraged settlements 
and colonies of whites ; and at a later period they still 
found means of controlling the Indian population far 
more absolutely than had been the intention of the 
civil authorities. Mexican laws enacted early in this 
century, and still in force in California after the Ameri- 
can conquest, provided for Indian alcaldes, in these 
terms : 

"Mission Indians have the right to elect their own alcaldes, 
who, with the advice and assistance of the mission priests, shall 
make all the necessary regulations for their own internal govern- 

The Acts of 1833-34, secularizing the missions, pay 
much attention to the welfare of the Indians. From 
the point of view taken by the Mexican Government, 
the only good reason for the long-continued existence 
of the missions had been to train citizens. They were 
not intended to be permanent establishments; but 
would, it was hoped, change peacefully into prosperous 
parishes, and gradually lose their peculiar industrial, 
political, and communal features. But the laws relat- 
ing to Indian alcaldes were practically a dead letter. 
Cooke, in his "Conquest of New Mexico and Cali- 
fornia," mentions such an alcalde at "San Phillip!" 


(Felipe) ; but otherwise, so far as we are able to learn, 
the right was unused and forgotten. 

If the condition of vassalage in which the mission 
Indians were kept be considered entirely justifiable, 
their treatment was, on the whole, satisfactory. Few 
whites except priests and soldiers were allowed to live 
at the missions, whose tile-roofed buildings of black 
sun-dried bricks (adobes) surrounded a large court; cool 
with flowing streams of water and shade-trees. One 
side of the square was occupied by the great mission- 
church; while the remaining three sides were devoted 
to galleries, porches, workshops, barns, stables, grana- 
ries, kitchens, store-houses, cells of neophytes, and rooms 
of priests. The Indians were fed and clothed, taught 
trades, simple mechanical arts, and the system of agri- 
culture practised in Spain; passing their uneventful 
lives as humble servants of the Church, which was 
virtually independent of Mexico, owner of the soil, 
and master of the country. 1 

One might fill a volume with incidents of life in 
these quaint and curious missions before their hour 
of doom came. The people rose at sunrise, spent an 
hour at the chapel, marched singing to the fields, re- 
turned when the evening angelus rang, spent the even- 
ing in games and amusements, and retired to their huts 
of tules grouped under the mission's protecting shadow. 
They planted gardens, orangeries, vineries, and olivari- 
ums, gardens in which the choicest fruits of Granada 
and Andalusia were grown; and they tended the fast- 
multiplying herds of the mission in the broad valleys 
and on the fertile foot-hills. California became almost 
a sanitarium and refuge for army veterans and worn- 

1 Paper on California. Harris: Maryland Hist. Soc. Pub., 1849; now 
a very rare pamphlet. 


out priests; the missions where they dwelt were like 
highly cultivated oases in the midst of a wilderness. 
Catholic writers have strongly denounced the subse- 
quent Mexican policy of secularization, marked as it 
was by the confiscation of the "Pious Fund," estab- 
lished for missionary purposes by wealthy Catholics in 
Mexico and Spain. De Courcy says that the Franciscan 
Fathers had seventy-five thousand California Indians 
civilized and converted before 1813. Another writer, 
Marshall, adds that in eight years the secular adminis- 
tration of the missions " re-plunged the whole province 
into barbarism," and utterly failed in every particular ; 
reducing at the chief missions the 30,650 Indians to 
4,450, the 424,000 head of cattle to 28,220, the 62,000 
horses to 3,800, the 331,000 sheep to 31,600, arid the 
annual yield of 70,000 fanegas of wheat to 4,000. (A 
fanega weighed 150 pounds.) This scattering of help- 
less, ignorant Indians over California has ever, and most 
justly, appealed to human sympathies. Even at this day 
the great adobe walls of the few mission-churches that 
yet stand, the rude sculptures, gaudy frescos, and square 
belfries, the neglected burial-grounds, the huge and 
rude crosses set sloping on the hillsides or crowning 
some seaward-overlooking peak, the mournful silver- 
gray olive-trees, large as those that look down the dark 
chasm of Sorrento, all appear sacred and deeply impres- 
sive features in the California landscape. Protestants 
and Catholics alike treasure these memorials of the 
dreamy, romantic childhood of California, of conditions 
of society that have forever departed from the Ameri- 
can continent, and of an ecclesiastical rule more power- 
ful and more exclusive than existed elsewhere in North 

When the missions were first established, a tract of 


about fifteen acres was allotted to each one ; but their 
lands were never surveyed, and they gradually extended 
their bounds until they virtually laid claim to nearly 
the entire region. The term "mission," that once had 
meant only the church-town, with the gardens and 
orchards near it, soon came to include the extensive 
tracts over which the cattle, horses, and sheep owned by 
the establishment were allowed to roam at will. There 
were, a few years later, some separate private grants and 
presidio reservations. The priests never received any 
formal acknowledgment, from the Spanish Government, 
of their land-claims. The revolution of 1822 put the 
subject into the hands of Mexican Liberals, who four 
years later freed the Indian serfs from compulsory alle- 
giance to the priesthood. The mission-lands were gradu- 
ally alienated, and the decay and ruin spoken of in the 
previous paragraph followed as a natural consequence. 

It appears evident that the missions in their best 
estate were triumphs of organization, and marvels of 
pastoral wealth. San Gabriel, for instance, once con- 
tained three thousand Indians, owned one hundred and 
five thousand cattle, twenty thousand horses, forty thou- 
sand sheep, and seventeen extensive ranches all well 
cultivated; it had fig, olive, grape, and orange planta- 
tions; and thousands of dollars were in its treasury. 
The twenty-one missions of Alta California in 1820 
contained thirty thousand Indians, and owned a million 
head of live-stock. By 1833, when secularization be- 
gan, the number of Indians had fallen to twenty thou- 
sand, there being great mortality among them, and little 
recuperative energy. By 1837 the missions held only 
about four thousand Indians, and less than sixty-three 
thousand head of live-stock. Seventeen years never 
wrought more complete ruin in a social system. 


We have now to consider the legal aspects and 
methods of organization of the mission colonies. The 
Franciscan padre who governed each mission was at 
first its civil as well as religious ruler, and dealt directly 
with the viceroy of Mexico. He was called the presi- 
dente, or governor, and administered the law within his 
jurisdiction. Nominally it was the law of Mexico ; 
practically it was frontier government, few and simple 
rules, prompt and summary enforcement, and no appeal 
except to the city of Mexico. Thus they governed the 
Indians, the soldiers, the few white settlers in the vil- 
lages that grew up near the missions. The province 
had its commandante, representing the civil and military 
power, but never interfering with the management of 
the missions, nor criticising the decisions of the priests. 
In Father Junipero Serra's time, there was a conflict of 
authority, which ended in a victory for the ecclesiastics, 
and the military authorities accepted the situation. 

The first grant of land the priests allowed to be given 
in California was in 1774, to a Spanish soldier named 
Butron, who had married a baptized Indian girl from 
Carmel Mission, and received a tract in that valley. 1 
By this time their claims embraced nearly the whole 
territory from sea-coast to sierra, and from Sonoma 
Mountain to San Diego Bay. It was difficult, even at 
a later date, when secularization was evidently an inev- 
itable fact, to secure ownership of land "against the 
encroachments of powerful missions which discouraged 
immigration, and under a weak and irregular territorial 
government." 2 Despite these difficulties, and the al- 
most constant opposition of the priests, the little pue- 
blos, or free towns, grew, and received alcaldes. In 1813 

1 Tuthill's History of California, pp. 60-63, passim. 

2 Cooke's Conquest of New Mexico and California. 


the Spanish Cortes granted right to form ayuntamientos, 
or town-councils. By various enactments between 1822 
and 1833, the Mexican Government took secular author- 
ity from the presidencias, and swept away the irrespon- 
sible, undefined, and illegal power so long exercised 
within those jurisdictions. The presidente, or priest- 
president, became a simple prefect, and civil authority 
prevailed over ecclesiastical. 

The mission-land claims were continued long after 
the American conquest. Priests in charge of missions 
attempted to sell or rent lands in the vicinity, and were 
prevented by Mason, the military governor. The noted 
case of Nobili v. Redman 1 decided the legal status of 
the missions, and aided greatly in settling land-titles in 
California. This decision was to the effect that "the 
missions established in California prior to its acquisition 
by the United States were political establishments, and 
in no wise connected with the Church. The fact that 
monks or priests governed them does not prove the 
ownership of the Church. The lands the mission held 
remained government lands ; and the Church can only 
claim mission property under the Mexican decree of 
1824, and subject to all its limitations." 2 This evidently 
refers to and includes the Acts subsequent to 1834, 
carrying into effect the original announcement of 1824. 

The secularization of the mission-lands will be de- 
scribed more at length in discussing the pueblos, or free 
towns, into which some of the missions were converted. 
This secularization seems to have been amply justified 

1 6 Cal. Rep., p. 325. Another interesting case is that of Santilan 
vs. Moses, 1 Cal. Rep , p. 92. The position of the priest was held analo- 
gous to that of " sole corporation " in England. 

2 " Primafaeie, that the Mexican Government of California had the 
power to grant mission-lands as they chose." Den. vs. Den., 6 Cal. Rep., 
p. 81. 


as a principle of public policy, though it was not wisely 
conducted. It was, so far as the descendants of the 
first Spanish settlers were concerned, an act of simple 
justice. As early as 1763, men had removed from 
Mexico to California under promise of becoming land- 
owners ; and this had hitherto been denied them. It was 
also an act of patriotism ; because the priests of Mexico 
and California had done all they could to prevent the 
success of the revolution, and whatever reduced their 
political and financial influence aided the stability of 
the new republic. The last of the missions the priests 
had established was that of Sonoma, in August, 1823 ; 
and between 1824 and 1834 the various decrees already 
alluded to stripped them all of their possessions. The 
civil officers put in charge were often dishonest; the mis- 
sion-cattle were stolen, or else strayed off into the moun- 
tains ; the Indians in many cases gladly returned to 
their savage life, or wasted their patrimony, and sank 
into beggary. These ten years represent a transition 
period from the era of missions to the era of pueblos, 
and in many respects the change was a trying one for 
the people. 

The famous missions, with all their faults of theory 
and of practice, had been planted by men possessed of 
the true missionary spirit : they had done much to civ- 
ilize the natives, and more to improve the country. 
They had often dispensed a genial and generous hospi- 
tality to strangers, and they ruled their servants with a 
firm and liberal hand. When the whole social fabric 
of the mission-system went to ruin, the suddenness of 
its downfall shocked all thoughtful observers. Yet it 
was but an artificial system, and its intrinsic worthless- 
ness was plainly revealed the moment outside pressure 
and military coercion were removed. Moral suasion was 


futile to retain the thousands of Indian converts, who 
could no longer be persuaded to make soap, mould 
bricks, weave wool, sing Latin hymns, and repeat 
mediaeval prayers. They returned to their hillsides, 
their grasshoppers, their camass-roots, 1 and their idle- 
ness ; while many of the priests went back to Mexico. 
The missions' lack of economic success was by far the 
least part of their failure. 

The population of Alta California, exclusive of In- 
dians, was at this time (1834) about five thousand, of 
whom not more than forty were English and Americans. 
Some of these, however, occupied very influential posi- 
tions ; several were alcaldes, and nearly all had married 
wealthy senoritas. But, in order to obtain any political 
rights, they had been compelled to become Catholics, 
and were objects of suspicion and hatred. Don Jose* 
Castro was heard, in 1837, to declare that " a- California 
cavallero cannot win a seftorita if opposed in his suit 
by an American sailor. . . . These heretics must be 
cleared from the land." Their numbers, however, were 
constantly receiving accessions. The foreign element 
grew stronger, despite all efforts to dislodge them. 
They held on, with the tenacity of men in whose veins 
the blood of many generations of Aryan pioneers was 
flowing. A few swaggering trappers came wandering 
through the mountain passes; a few runaway sailors, 
such as Gilroy, who married the Spanish heiress of vast 
possessions, became lords of inland valleys ; a few keen- 
witted Yankee traders settled in the towns: and the 
end of Spanish-American domination was close at hand. 
Meanwhile the light-hearted, passionate, generous na- 

1 " Camass esculenta," the most important food-bulbs of the Pacific- 
coast Indians. Described by the late Hon. B. B. Redding in American 
Naturalist, and in report to Smithsonian Institute. 


tive Californians established their ranchos in all the 
fertile valleys, and built their dingy, thick-walled adobe 
mansions on points of vantage from San Diego to Sono- 
ma; always choosing, with some hereditary instinct of 
the race,- the picturesque and beautiful outlooks, or 
nestling in the most sheltered of vales, or in the wild- 
est of ravines. The life they lived, in its freedom from 
care, and its glorious physical healthfulness, was simply 
perfection. Dana somewhere speaks of the Californians 
as " a people on whom a curse had fallen, and stripped 
them of every thing but their pride, their manners, and 
their voices." But he had only seen them in their 
pueblos near the coast : he had not visited their wide- 
roofed homes, when all the descendants of the Cas- 
tilian pioneer of 1763 gathered under one roof-tree in 
harmony and affection. Horses could be had for the 
asking ; cattle were only of value for the hides, worth 
two dollars apiece, and called " California bank-notes." 
There were no fences anywhere, except hedges of 
nopal (or prickly-pear), walls of brush, and ditches 
formerly dug by the mission Indians about the adobe 
ranch-houses. There were no roads, except, near the 
towns, the occasional track of a slow, wooden-wheeled 
carreta, or ox-cart. Every one rode on horseback, and 
with an ease, grace, vigor, and fearlessness, which have 
never been surpassed by any race. This was the peo- 
ple whose flocks and herds soon covered the plains 
and hillsides once claimed by the missions, and into 
whose untroubled life the American pioneers brought 
elements of change and confusion. This was the era 
of California's eventful existence, that coming artists 
of language will delight to portray. Its saints are such 
as that high-born maiden, Concepcion Arguello, of 
whose faithfulness Bret Harte's poem tells ; its shrines 


are mostly ruined walls of sunburned clay, the oldest 
architectural remains on the Pacific coast of the United 
States ; its heroes are dark and haughty vaqueros, storm- 
ing across broad mesa, wild canon, and steep barranca. 
An old Spaniard dying in a rude hut near San Luis 
Obispo, in the winter of 1874, sprang to his feet in the 
delirium of fever, and cried out, "I hear the ringing 
of their spurs on the mountain, the trample of their 
horses ! " and so, repeating the names of his companions 
of fifty years before, he sank back in an unconsciousness 
from which death soon released him. 



THE pueblos of Mexico are simply towns, as the pue- 
blicitos are simply villages. In Alta California, the first 
pueblos were so distinct from the presidios, or nomi- 
nally fortified towns under military rule, and from the 
missions under ecclesiastical rule, that they well de- 
serve the title of free towns. They alone had an 
alcalde chosen by the people ; and they alone had 
common lands, and gifts of town-lots to all residents. 

But there is an application of the word "pueblos" 
to the relics of an ancient, fast-fading, native civiliza- 
tion, which has perhaps become more familiar to most 
readers than is the Mexican or Californian usage. The 
pueblo of the south-west region of the United States 
is far different from those we have just described. Ad- 
venturous students such as Mr. Frank Gushing, explo- 
rers such as Major Powell, and archaeologists such as 
Mr. L. H. Morgan, have made us acquainted with the 
rock-fortresses and the immense communal buildings of 
the race that reared Cicuye*, Quivira, Cibola, and the 
City of Mexico. 1 Even to-day the Moquis shape their 

1 The first of these was discovered by Coronado; the second was the 
city that Penalosa saw; the third was the mystic and seven-citied realm 
that the Franciscan friar, Marcos de Niza, reported in his " Relations " 
(Hakluyt Soc., vol. iii. p. 438). For these pueblos, see Morgan's Homqs 
of the Aborigines, Government Reports of Major Powell, Short's North 


black and red pottery as they did before Martin Behaim 
began to dream of a new world ; the Zuni priests still 
guard their sacred fires, and pray in their secret lan- 
guage for the fast-fading " children of Montezuma." It 
is curious enough that this Spanish word " pueblo " should 
have come to be applied to the "joint-tenements" of the 
proud and brave people that drove Otermin out of New 
Mexico, and for fifteen years governed themselves. At 
the present time the pueblo Indians of the South-west 
choose their own chief ruler, war-captain, and fiscal, as 
they have done for years. The pueblos of California 
had no essential relation to the Indians, and were only 
modifications of the Mexican town-system. 

In Alta California, the need of pueblos began to be 
felt soon after missions were first established. The 
presidios, where the soldiers and commandantes were, 
required grain, vegetables, and supplies of various sorts. 
Spanish vessels from the East Indies occasionally wanted 
provisions. The viceroy of Mexico therefore wrote to 
the commandante of San Diego and Monterey, under 
date of Aug. 17, 1773, declaring that he "grants him 
the power to designate common lands, and also allows 
him to distribute lands in private to such Indians as 
may most dedicate themselves to agriculture and the 
breeding of cattle ; but they must continue to live in 
the town or mission, not dispersed on their ranchos" 
The commandante is also empowered to grant lands to 
any new and desirable settlers, and he " must give legal 
titles without cost." Then follows the statement, clearly 
opposed to the claims of the ecclesiastics, that he "may, 
if he deems it expedient, change a mission into a pueblo, 
and subject it to the same civil and economic laws as 

Americas of Antiquity, Putnam's Archaeology of the Pueblos; also, A 
Pueblo Fete Day, in Overland Monthly for April, 1884. 


govern the other pueblos of the kingdom." Nothing, 
however, seems to have come of this permission, except 
a few isolated grants, all under permission from, and 
with the full approval of, the priests. 

Four years later, in June, 1777, explicit directions 
from the viceroy ordered the establishment of two 
pueblos, one at San Jose*, the other at Los Angeles, on 
the Rio Guadalupe and the Rio Porcincula respectively. 
In 1795 the Marquis of Branciforte founded a colony, 
and the pueblo of Branciforte, near Santa Cruz. All 
the other pueblos of California were outgrowths of mis- 
sions or of presidios. The regulations outlined in the 
letter of the viceroy, written in 1773, were adopted for 
the first two pueblos. 

In June, 1779, additional regulations respecting the 
pueblos were issued, and were approved and emphasized 
by royal orders of Oct. 24, 1781. By these orders, each 
publador, or village colonist, was to be paid $116.44 
yearly for the first two years, and $60 yearly during the 
next three : he was also to have the free use of horses, 
mules, cattle, sheep, utensils, and to be furnished with 
seed-wheat and other necessaries, of which a long list is 

The officials are to lay out the streets and public 
squares, with which all Spanish towns are well pro- 
vided; and are to choose and mark out the common 
lands (egidos), the lands for municipal purposes (pro- 
pios), the house-lots (solares), and the separate sowing- 
lands of the colonists (suertes). We have here a four- 
fold and extremely interesting division of lands among 
villagers, a division of very ancient usage among the 
Spaniards. All the details of the system point to its 
origin in a community where some of the land had to 
be irrigated on account of the uncertainty of the sea- 


sons, and where much of the wealth of the people was 
in cattle. The common lands of the pueblo were to 
furnish water, pasturage, timber, and firewood, and 
these privileges were free to all dwellers in the town. 
Those who received grants of building-lots were obliged 
to fence them, make certain improvements, and plant 
trees thereon, within a stated time ; and this they prom- 
ised in their petition to the alcalde, or to the town- 
council. The "sowing-lands" were granted in two 
parcels to each individual ; one half being " capable of 
irrigation," the other half " dry ground," or upland (de 
tierras) . 

The object of establishing the California pueblos was 
set forth in a long preamble in the royal order of 1781. 
It was, " to forward the reduction of, and as far as possi- 
ble make this vast country useful to the State ; " and 
the union of white men, or " people of reason " (gente 
de razori), in close communities; also, the "better edu- 
cation of the Indians." 

Each pueblo was furnished with alcaldes and other 
municipal officers (members of council, and syndicos'), 
in proportion to the number of inhabitants. For two 
years these officers were appointed ; the third year, and 
thereafter, they were elected. The titles to houses, 
lots, and water-rights for irrigation, were recorded in 
the "Book of Colonization," and kept in the pueblo 
archives. The council had many duties similar to those 
of the ordinary town-councils known to Americans : 
they ordered the laying-out of streets, the planting of 
shade-trees, the repair of roads. 

In some cases the pueblo council established schools. 
Feb. 11, 1797, Felipe Goycochea, of the presidio of Santa 
Barbara, wrote to Governor Borica, saying, " I trans- 
mit to you a statement in relation to the schools, to- 


gether with six copy-books of the children who are 
learning to write ; " and these Spanish copy-books of 
this pueblo school are still in the archives of California, 
and likely to long remain, the only thing for which 
history takes note of these last-century officials. The 
missions had their schools, also, where some of the 
brightest Indians were taught to read and write, to 
keep accounts, and superintend laborers in the field. 
The hero of Mrs. Helen Hunt Jackson's pathetic and 
beautiful novel " Ramona " is in no wise an impossible 
creation : a few such men grew up under the training 
of mission and pueblo. "Ramona" gives information 
about the organization of the more progressive Indian 
settlements of southern California, after the seculariza- 
tion of the missions, before their common lands were 
wrested away by fraud and force, and shameful neglect 
on the part of the United-States Government. 

In March, 1791, the viceroy wrote from Chihuahua, 
Mexico, to Governor Romeu of California, the order 
reaching him in October, ordaining that the extent 
of four common leagues measured from the centre of 
the square was sufficient for the new pueblos, into 
which the old presidios were transformed. The cap- 
tains of the presidios were to grant and distribute 
house-lots and lands to citizens and former soldiers 
within these limits. The decree closed with the cus- 
tomary phrase used by the courtly hidalgos of Spain, 
" God preserve you many years." 

President Iturbide in 1823 established new laws for 
the pueblos, but they were never put into practical 
operation in Alta California. The decrees of 1824 and 
1828 of the Mexican Congress, however, set forth minute 
regulations regarding the colonization of the vacant 
lands, and the granting of town-sites to individuals 


who bound themselves to establish colonies. No person 
was allowed to receive more than one square league 
of irrigated land, four leagues of land dependent on 
the seasons, and six leagues of pasture. The lands 
granted must be "vacant," as the exact status of 
the mission-lands was declared "to be as yet unde- 
termined," and "must not be within ten leagues of 
the coast." This last was evidently an attempt, which 
proved of little avail, to populate the interior valleys. 
Less than twelve families were not considered as form- 
ing a colony. The government, policy, and town-laws 
of Mexican towns were copied as nearly as practi- 

The spirit of the laws governing the granting of lands 
to the pueblos was manifestly liberal, as is shown in an 
Act of the governor and territorial deputation of Cali- 
fornia, Aug. 6, 1834. It is there provided, that when a 
settlement is made, and the people establish a council, 
that body may apply for assignments of land. This 
evidently contemplates the growth of free towns, not 
begun by formal colonies, or under large grants, but by 
a few settlers in the ordinary Anglo-Saxon fashion of 
planting communities. The municipal land so granted 
was rented, or given out by lot, subject to an annual 
tax imposed by the council, " the opinion of three 
intelligent men of honor being first taken." Each 
house-lot of one hundred varas square l cost the grantee 
six dollars and twenty-five cents for fees paid to the 
alcalde. Land required for warehouses and other edi- 
fices was reserved by the authorities. 

Aug. 9, 1834, the long series of efforts to secularize 
the missions, and convert them into pueblos, of which we 

1 The vara is the Mexican yard of thirty-two inches and four-tenths. 
It is still iu use in real-estate transaction in Sail Francisco. 


have previously spoken, and which had extended over 
so many years, culminated in the "provisional regu- 
lations " of Governor Figueron, providing for the secu- 
larization of ten of the missions. 1 The new pueblos 
were given alcaldes and councils. Appointed commis- 
sioners took charge of the mission-property, and made 
classified inventories. They explained to the Indians, 
"with suavity and patience," that the missions had been 
converted into pueblos; that they were only subordi- 
nate to the priest in matters spiritual ; and that each 
one must work, maintain, and govern himself, " without 
dependence on any one." A few large Indian rancherias, 
distant from the missions, were allowed to form separate 
pueblos ; but these were failures. 

Thus, as we have seen, the system that prevailed dur- 
ing the early part of this century underwent many 
changes. Once the territory had been divided into 
four provinces, San Diego, Santa Barbara, Monterey, 
and San Francisco, each with a command ante, 2 and 
the seat of government of each being named a presidio. 
About it were tracts of land reserved for the use of 

1 The Cortes of Spain first mentioned secularization in a decree of 
Jan. 4, 1813, in reference to Buenos Ayres; saying, " Steps will soon bo 
taken to reduce vacant and other lands to private ownership." Sept. 
13, they ordered the Buenos Ayres Indians to choose representatives to 
meet the governor's agents, and distribute the mission-lands. In Janu- 
ary, 1831, the governor of California issued a decree based on these Acts 
of 1813; but clearly illegal, and so at once recalled. Agitation continued 
till 1833, when appeared the general Act under which the regulations of 
1834 were passed. 

2 "We have before alluded to the commandante. He is a classic 
figure in early California life. Cases from alcalde-courts and from mis- 
sions were often referred to him. He held his appellate court with 
great dignity, a naked sword on one side of his chair, and a silver- 
headed cane on the other. The sword awed the simple Indians and 
Mexicans; the cane was a perpetual writ of summons, sent to a man's 
door to call him as witness, or carried through the village to bring 
young and old to the court-room. 


the king's soldiers, and called rancherias. 1 The mis- 
sions held all they chose of the remaining territory. 
By 1835 there were secularized missions, ruled spiritu- 
ally by priests, temporally by government administra- 
tors called major-domos in the Act of 1840 ; free towns 
or pueblos, ruled by officers of their own election ; and 
private estates, controlled with almost manorial powers 
by lordly Spanish dons owning ranchos or haciendas. 
When Americans began to acquire property in the 
pueblos, a knowledge of their laws was essential ; and 
many land-titles long depended on the pueblo records 
and procedure. 2 

Historically, the most important of the pueblos was 
that of Yerba Buena, at first a mere embarcadero, or 
landing-place, for boats of fishermen and hide-drogers ; 
which grew up near the Mission of Dolores and the 
presidio of San Francisco, absorbed both, took the 
name of the latter, and has since grown into the largest 
city on the eastern shores of the Pacific. San Jose and 
Los Angeles have also had great prosperity, and prove, 
in American hands, that "the ancient and honorable 
pueblos" from which they sprung were admirably 

The early courts of the State of California recog- 
nized and confirmed titles received from the pueblos, 
and sustained their rights to common and municipal 
lands. 3 In the case of the pueblo of San Francisco, 

1 The word has fallen from its high estate. A rancheria is now only 
a collection of Indian huts. 

2 " Pueblos could be formed by discharged soldiers, or by a grant to 
a chief colonist, or to twelve or more families, or by a presidio being 
established, or by the secularization of a mission " (Welch vs. Sullivan, 
8 Cal. Rep., p. 165). 

8 Case of Welch vs. Sullivan, 8 Cal. Rep. Also Hart vs. Burnett, 
15 Cal. Rep. 


the centre of the old presidio square was made the 
initial point for a survey of the four square leagues to 
which the town was entitled as successor to the rights 
of the pueblo of Yerba Buena. 1 It was decided, under 
American law, that the lands of a pueblo were not sub- 
ject to seizure or sale under execution. 2 The power 
of granting pueblo lands was usually vested in the 
alcalde, as before stated, but sometimes needed the 
approval of the ayuntamiento, or sometimes of the peo- 
ple of the pueblo. If there was no alcalde, a justice of 
the peace, in American days, granted lots. In all these 
cases, specific rules and restrictions were observed. The 
authorities, for instance, could only grant or lease small 
house-lots, or garden-lots of two hundred varas square. 
Certain lands could not be sold, mortgaged, nor alien- 
ated, even to pay municipal expenses. 3 

Under Mexican rule, the petition required to be sent 
to the alcalde must set forth that the petitioner was 
a citizen of Mexico, a resident of the pueblo, desired 
to use and possess a certain unoccupied tract, and 
would proceed to make certain improvements. The 
land was usually granted at once. The expenses of 
the proceeding varied at different times from five to 
twenty dollars. 4 /The opportunities and perquisites 
of the office of alcalde were fully appreciated in later 
times by some of the American incumbents, who granted 
tracts outside of pueblo bounds, and seriously compli- 
cated land-titles. The American military governors of 
California had various difficulties on this score with the 

1 Payne and Dewey vs. Tread well, 16 Cal., 220. 

2 Fulton vs. Hanlon, 20 Cal. Rep., 450. 

a 1 Cal. Rep., 306. Also cases of Redding vs. White, 27 Cal. Rep., 
282; Branham vs. San Jose', 24 Cal., 585. 

4 Petition of Rosalie Haro, of Yerba Buena Pueblo, to Alcalde 
Padilla (before American conquest), 1 Cal. Rep., 323. 


pueblos of San Francisco, Sonoma, San Jose*, Monterey, 
and Santa Barbara. So far as was consonant with jus- 
tice, the grants made during this period were sustained. 
The rights of San Francisco were continuously recog- 
nized from 1835 to 1850, except that certain grants 
made in 1849 by a justice of the peace were set aside 
as invalid. 1 

In the Mexican system as known in California after 
1837, the alcalde was chief officer in all towns, and 
always presided over the town-councils when such 
existed. As late as 1850 he retained the right of 
granting town-lots. 

The preceding notes upon the pueblos have thus led 
by natural steps to a full consideration of this chief 
office of the pueblo, the Mexican-Spanish alcalde- 
ship. Several times in the progress of this study, we 
have found it necessary to use the term, and allude to 
the office. Alcaldes ruled the Darien colonists and the 
Darien mining-camp; they found a place in Mexican 
mine-towns, and Mexican pastoral communities. Trans- 
planted to Alta California, the office still preserved its 
unique character, and continued its development tow- 
ards higher forms. At last the American miners for a 
time adopted the name and the institution, transferring 
it from the towns of the coast to the camps of the 
Sierra. We must, in a separate chapter, consider the 
historical evolution of this office in Spain, in Mexico, 
and in California. How was it that a local officer of 
the Spanish civil system became the most important 
of institutional contributions from Spanish America to 
Germanic America? How was it that the freedom of 
the people to choose their own alcaldes was often 

i Cohas vs. Raisin, 3 Cal. Rep., 443. 


greater in California than in Mexico ? To answer these 
questions, we must consider the nature and scope of 
the office in its varied forms, and throughout its event- 
ful career. We must turn to the caliphate of Cordova 
and the three Christian kingdoms of northern Spain. 



THE heart of the Spanish local system is the alcalde- 
ship. We must, however, turn to the fruitful Orient 
for the origin of the office: it is, in fact, the kadi of 
Persia and Arabia, the alJcaid of the Saracens and 
Moors ; it is also the village judgeship of Spain in its 
heroic age, when Aragon possessed the most liberal 
constitution in Europe. 1 Art, romance, and literature 
have loved to linger over the picturesque features of 
this office ; tales of the East, and peasant-songs of the 
Spanish peninsula, alike describe the "judge of the 
village," whose power for good or evil was almost 

The very forms that the word has taken in the 
Spanish language are evidences of the universality and 
importance of the thing itself. An alcaidia is a town- 
warden, or governor of a town, or it is the district of 
his jurisdiction ; his wife is the alcaidesa ; the duty 
anciently levied on all cattle driven across the district 

1 In Aragon, the citizens of the free towns, or pueblos, had provincial 
laws, organized guilds, and elected alcaldes. They chose deputies to 
the cortes, or legislative council; and this council elected the supreme 
judge, or justicia, levied taxes, and appointed minor officers. Aragon, 
Valencia, Castile, and Catalonia held cortes of three estates, prelates, 
nohles, and deputies. Leon in 1188 assembled the first council of elected 
deputies. Barcelona grew from the Spanish Mark established by Karl 
the Great, and became independent in the days of Charles le Chauve. 



or through the town was the alcaida ; the alcaiceria 
the market-place. These are earlier forms, and point 
wider sway, and even greater powers, than the model 
alcaldes ever possessed. The true alcalde was judge oi 
the town, and ex-officio mayor of the council. To be 
given alcaida^ was to receive the protection of some 
powerful citizen or great nobleman ; the office itself is 
the alcaldia; the judge's wife is the alcaldesa; lastly, 
as a term of contempt, anger, or sarcasm, applied to any 
absurd or hasty action, we have the word alcaldada. 

Pleadings before the Spanish alcaldes were oral ; and 
proceedings were summary, and in all ordinary cases 
were final. Even in very important trials, an appeal 
was infrequent ; for to carry it farther meant to become 
entangled in the Spanish courts of record, a worse fate 
than to drift into the delays of the English chancery 
courts. In one of the mediaeval Spanish romances, a 
peasant says, " Yonder stone wall will rot ere thy law- 
suit ends." 

Under the Spanish laws, the alcaldes were the con- 
ciliators of disputes, and the head men of the village, 
responsible to higher authority for the behavior of those 
under their charge. 

Wherever the descendants of Spain went, they took 
the main features of the alcalde-system to which they 
were accustomed : the silver-headed official staff of the 
alcalde was planted beside the cross of the Jesuit mis- 
sionaries and the Franciscan friars. We have previously 
spoken of alcaldes in the colonies of Cuba and Darien : 
alcaldes also accompanied the soldiers of De Soto and 
Narvaez. When Cabeza de Vaca, afterwards pioneer 
explorer of New Mexico, declined to accept command 
of the fleet of Narvaez, it was an alcalde who took the 
position. The alcaldes of that period were soldiers and 


judges by turn, leaders of expeditions, and governors of 
new colonies. Don Diego Peiialosa, one of the most 
adventurous Spanish knights of the seventeenth cen- 
tury, was in succession alcalde of La Paz, alcalde of 
Cuzco, and provincial alcalde of all the La Paz prov- 
inces. 1 

So soon as Mexico was conquered, division into dis- 
tricts and the planting of pueblos began, to each of 
which an alcalde was appointed, vacancies being after- 
wards filled by election. The powers and duties of the 
office were probably much the same as at the present 
time ; except that, so long as the mining-courts existed, 
no alcalde had any jurisdiction over mining-cases. He 
could not even give a title to mineral-lands ; this right, 
as we have already seen, being vested in the " mining- 
deputation" of the provinces. In 1812 the Spanish 
cortes extended municipality privileges to all Mexican 
villages of fifty or more inhabitants, and provided that 
several hamlets could be united politically for town 
government ; that is, under an alcalde, for no council 
was considered necessary in such cases. 

One of the most interesting and primary duties of the 
Mexican village alcalde was that of arbitration in all 
minor disputes. Conciliacion was recognized as a part 
of the mining-law: it also belonged in the civil code. 
No trial could take place until the alcaldes (always 
known in this capacity as hombres buenos) had tried to 
settle it equitably, and to the satisfaction of both parties 
without expense to either. " Each alcalde," the law said, 
"shall have a book, called the 'Book of Conciliation^ 
in which to keep a record of all cases, and of the means 
taken to prevent litigation." But " ecclesiastical, mili- 

1 Shea's Penalosa Quivira Expedition. 


tary, and municipal cases, and those that affect public 
revenues," were not subjects for conciliacion and com- 
promise. The ceremony of arbitration as a necessary 
prelude to all lawsuits was first disregarded, in Cali- 
fornia, in February, 1850. 1 The Spanish principle of 
conciliacion is doubtless a gift of Roman jurisprudence. 
The eighth section of the fourth book of the Pandects 
lays down the principles almost exactly as now accepted 
in Mexico. Some of the old provincial laws of France 
provided for "arbiters." The principle is recognized as 
of great importance in international law, to settle diffi- 
culties and prevent war. 

There was a form of local and special alcaldeship 
first known to Mexico during the sixteenth century, 
that has, in modified forms, become a part of Western 
life in the United States. Yearly the village alcalde 
and the council (if one existed) chose two or more 
alcaldes de mesta, who presided over the semi-annual 
assemblages of the live-stock owners. This custom was 
carried wherever Spanish colonists went. In California 
these officers were known as jueces del campo (" judges 
of the plain "). They were obliged to be present at 
all the annual rodeos, or meetings on horseback in the 
open fields, for the purpose of collecting and branding 
all the live-stock of the district. These rodeos were 
the most important celebrations known to the Spanish 
Californians. Every ranchero and vaquero was on hand 
with whirling riata and gayly caparisoned mustang. 
The jueces were often called upon to settle disputes 
about the ownership of cattle, the identity of brands, 
and similar matters ; and they were very useful and 
dignified officials. From the first, the Californians ap- 

1 Von Schmidt vs. Huntington, 1 Cal. 55. 


pear to have elected their own jueces ; and several 
times Americans were chosen before 1846. During the 
military occupation of the territory, the office of jueces 
continued ; Americans serving in Los Angeles, Monte- 
rey, and San Jose*. When the first legislature of the 
State of California met, it passed, on the last day of 
its session (April 20, 1850), a bill repealing all the old 
Spanish laws " except the laws of the jueces del campo" 
For years after, and, indeed, as long as any rodeos were 
held in the pastoral regions of California, local judges 
to decide disputes were chosen. As late as 1870, a vis- 
itor to San Luis Obispo County saw American and 
Spanish cattle-raisers holding rodeos, and submitting 
peaceably to the decisions of three "judges of the plain" 
chosen from among their number on the first day of the 
rodeo. The great plains of California have all been 
fenced, and are being sown with wheat and planted with 
vines, so that the annual rodeo is now an extinct insti- 
tution. But in Western Texas, New Mexico, Colorado, 
and northward, wherever great cattle-ranges are found 
to-day, the stock-men, in their picturesque and exciting 
" round-ups," still follow the ancient Spanish plan ; not 
knowing that it is a heritage from a race they despise, 
they choose " cattle-judges," to settle disputes, and up- 
hold their decisions as final. 

The strange vitality of that nomad institution, the 
alcalde de mesta, is explained by the fact that it was 
perfectly adapted to the needs of a pastoral community, 
as much to cattle-owners and cow-boys as to rancheros 
and vaqueros. But the fixed and permanent office of 
the true town-alcalde has proved hardly less enduring, 
and is certainly much more instructive to the student 
of institutions. 

The Mexican alcaldeship of to-day is much the same 


office that the first Spanish colonists knew. It is a 
good working combination of justice of the peace, town- 
constable, town-recorder ; it involves a sponsorship be- 
fore the law ; it possesses a sort of patriarchal authority. 
In each village, the power of the alcalde is supreme : his 
will is exercised over the in-coming and the out-going, 
the eating and the sleeping, the toil and the recreation, 
of every inhabitant. Each traveller visits him to make 
inquiries, to secure bargains, or to settle disputes with 
his servants or guides. Questions the most trivial are 
asked in the same breath with questions the most stu- 
pendous : to this Indian he quotes the market-price of 
onions, and to that blushing sefiorita gives advice con- 
cerning rival suitors. He has social privileges and polit- 
ical power. He is the chief overseer of local interests. 
If a travelling show wishes to visit the town, it usually 
bribes the alcalde to permit it to exhibit there, and the 
village priest to announce it from his parish pulpit. The 
messengers of the king used to carry letters of commen- 
dation to the alcaldes along their route. The simple 
and ignorant peasants have personal dealings with few 
other officials. Fear and reverence encircle the throne 
of this little autocrat, the alcalde, to whom every con- 
ceivable difficulty is brought for solution. For these 
reasons, the office is one of the most interesting, prime- 
val, and romantic of yet surviving Spanish institutions 
upon the continent. 1 

The rule of the alcalde in California was never so 
firmly established or so despotic as in Mexico, but it 
was always of greater importance than its nominal 
rights and duties would seem to justify. The powers 

1 Books of travel teem with allusions. Mr. D. S. Richardson of 
California, the private secretary of Minister Foster, in Mexico, writes to 
me giving an account of the alcalde's importance in village-life. 


authorized by the decree of March 20, 1837, were sup- 
plemented and increased by the weight of local custom ; 
for alcaldes had existed in California since the first 
pueblo was founded. 

This decree of 1837 re-organized the judiciary of 
California, providing for courts of conciliation, or lower 
alcalde-courts, for courts of first instance, courts of 
second instance, courts of third instance, and final 
appeals to the Mexican supreme court. But the revo- 
lutions and political difficulties in Alta California, then 
and thereafter, prevented the practical adoption of any 
such system : it simply remained a dead letter. The 
powers which it gave the alcalde were less than that 
officer really exercised. An enumeration of these 
powers, though suggestive and useful, must therefore 
be accompanied with a statement of the alcalde's un- 
written duties. 

"Alcaldes," it is provided in this decree, " shall secure 
good order;" shall execute the laws of the prefects; 
shall call for a military force, or upon the citizens for 
help, when needed ; shall see that the residents of the 
town live by useful occupation; shall reprimand idle, 
vicious, and vagabond persons ; shall preside over coun- 
cil meetings, and vote there ; and may impose fines of 
not more than twenty-five dollars. 

Jurisdiction over mining-claims was expressly with- 
held from the California alcaldes, and was left to the 
mining-deputation of the nearest province, Sonora. 

The large towns were given three alcaldes, six regi- 
dors, and two syndicos ; the nine forming the ayunta- 
miento, and the senior alcalde presiding. These officers 
were to be elected yearly ; but the office-holding power 
was not limited, and it was declared that " no one must 
refuse to serve without having the governor's permis- 


sion to retire." Certain officers of the governmei 
were prohibited from being members of the ayunta- 

The same Act of 1837 defines the duties of this coun- 
cil. It was to have charge of the streets and the ceme- 
teries, of sanitary affairs, of prisons and hospitals, of the 
inspection of drugs, liquors, and provisions. It was to 
act as a committee of charity in case of pestilence ; was 
to keep a record of births, marriages, and deaths ; was 
to provide for market-places, straight paved streets, 
bridges, parks, and public fountains. One of its duties 
was that of "making contracts for all sorts of diver- 
sions," such as public games and shows. It was em- 
powered to establish schools, and pay the teachers out 
of the municipal funds. Lastly, it was required "to 
be impartial to all citizens, rich or poor," to protect 
the weights and -measures, to expend public moneys 
honestly, and to report annually to the governor. 
Each member of the ayuntamiento was responsible for 
mal-administration or malfeasance. When elected, 
they were sworn in by the prefect, or by a former 

In some of the Mexican towns, the councils were 
doubtless burdened with most of the duties described 
in the previous paragraph. In California towns, the 
council seldom met, since the office was not salaried ; 
and the alcalde performed most of its functions, per- 
haps ordering a " horn-burning " in the pueblo square 
as a sufficient sanitary measure when unusual sickness 

A subsequent Act of 1837 restored certain powers to 
the alcalde. In the departments of California, New 
Mexico, and Tabasco, he was empowered to perform 
the functions of judge of first instance in all districts 


where there were no such judges ; and this was after- 
wards sustained by the American courts. 1 

But in most instances the alcaldes were even more 
than "judges of first instance." The disordered condi- 
tion of California gave the office greater power, but at 
the same time rendered its tenure more precarious, than 
the Mexican Government had contemplated. We have 
before alluded to these disasters in speaking of the 
sudden wreck of the missions, and the scattering of 
the Indians. Bands of wandering trappers descended 
into the valleys; the Russians had settled at Bodega 
and Fort Ross; and the Americans in the country 
aided Gen. Solis in his unsuccessful rebellion of 1830. 
Minor disturbances followed, and the Indians raided 
outlying ranches. American rifles decided the success 
of Alvarado's revolution of 1836-38 ; and from that time 
the American party began to organize, much as it did 
in Texas, aided in the downfall of Alvarado, and the 
success of Micheltorena in 1842. By 1845 the corrup- 
tion of his government caused a new rebellion, headed 
by Castro, Pio Pico, and others ; and Micheltorena was 
deposed. The American settlers in the Sacramento 
valley, and near Sonoma, soon had reason to believe 
that movements were on foot to drive them out ; and 
they organized the noted " Bear Flag " battalion, com- 
manded by Captains Ide and Grigsby, which thrust 
Castro from the Sonoma and Sacramento valleys, and 
was on the eve of proclaiming a republic when Fremont 
and Stockton came to their aid. 

While such political changes were in progress, the 
alcalde's tenure of office became precarious, because any 
district or town that wanted an alcalde preferred to 

1 Menars. Le Roy, 1 Gal. Rep., 216; also Panaud vs. Jones, 1 Cal. 
Rep., 448. See 1 Cal. Rep., 559, appendix, on general alcalde system. 


choose him for an indefinite period. Since the alcalde 
made his own laws, and saw them enforced according 
to his own methods, an unpopular law or a disagree- 
able decision speedily caused discontent, and sometimes 
ended in an appeal to the governor, or even in a pro- 
nunciamiento and a public assembly, taking the alcalde- 
ship away, and ordering a new election. This was done, 
in some instances, before the American conquest. 

In practice, the only judge above the California al- 
calde was the governor of the province, who could grant 
tracts of agricultural or pastoral lands in much the 
same way as the alcalde could grant town-lots, except 
that the papers and applications had to be forwarded 
to Mexico for final approval. Castro, Alvarado, and 
Pio Pico granted so many " concessions," that, in some 
cases, a single tract was given several owners, each 
showing equal title to the whole. Nominally there was 
a veto-power vested in the governor's council, called by 
courtesy a " departmental legislature ; " 'but, under the 
governors we have mentioned, large tracts were given 
away, unchecked even by Mexico. American courts 
sifted and tested these grants, refusing to confirm a 
large number on the grounds of illegality according to 
Mexican law. 1 After 1837 the governor held the only 
true appellate court in California. 

We have spoken of the " Book of Conciliations " that 
was kept by each alcalde. Besides this, he kept a 
*' Book of Verbal Processes," recording his judgments 
therein; also, and of more importance, he was com- 
pelled, according to the "Plan of Pitic," a Spanish 
law of 1789, to record all the grants of lands made by 
him within the pueblo bounds, to have them signed 

i Cases of Ferris vs. Coover, 10 Cal. Rep. ; Berryessa vs. Schultz, 21 
Cal. Rep. ; Waterman vs. Smith, 13 Cal. Rep. j and others. 


and attested (though without seals), and a copy deliv- 
ered to the petitioner. These books of record kept by 
alcaldes during the Spanish era, and previous to the 
organization of the State, were received as evidence of 
land-titles on proof that the signatures of the alcalde 
and clerk (syndicos) were genuine. 1 An alcalde deed 
to land was not void because no consideration was ex- 
pressed, nor were transfers of property which he made 
compelled to have a price mentioned. 2 

The old Spanish forms of wills were extremely simple ; 
and an alcalde, though appointed as executor, could 
authenticate the document in his judicial capacity, if 
only he was not named in the will as heir or legatee, 
nor derived any compensation for administering it. . 
The will of Anastasio Alviso of the pueblo of San Jose*, 
dated Sept. 19, 1846, contains a list of " passive debts " 
such as, " I declare that I owe Senora Romero seven 
hides;" also a list of "active debts" such as, "I declare 
that Vicente Monez shall pay for the kitchen utensils 
whatever he in his conscience shall think proper to 
deliver over." 3 Primitive habits of life are manifest in 
every line of such quaint documents, in spirit centuries 
removed from the California of to-day, though written 
less than forty years ago. 

During the military rule of the American officers, 
who governed California before it was yielded by treaty ' 
to the United States, the powers of the alcaldes were 
much limited in the coast-towns, though almost as exten- 
sive as ever in places where no military were stationed. 

1 Cases of Touchard vs. Keyes, 21 Cal. Rep. ; and Downer vs. Smith, 
24 Cal. Rep. Halleck says that Governor Pio Pico made antedated land- 
grants, and inserted them in the blank leaves of record-books. 

2 Merle vs. Mathews, 26 Cal., 455. 
8 Panaud vs, Jones, 1 Cal. Rep. 


In 1847, before the close of the war, while General 
Kearney was military governor, he appointed alcaldes 
whenever vacancies occurred, exercised close supervis- 
ion over their acts, and removed them whenever he 
saw fit. He directed the alcalde of San Jose*, John 
Barton, to dismiss a suit that the Mexican courts had 
already decided; he advised John Nash, alcalde of 
Sonoma, that a writ of restitution he had issued in 
an ecclesiastical case was illegal; he sent word to H. 
D. Fitch, alcalde of San Diego, empowering him to 
fine, imprison, or both, certain unruly persons. 

When Colonel Mason succeeded General Kearney as 
military governor of California, he announced that 
" the alcaldes are not authorities of the United States, 
nor are they Mexican authorities. They are the civil 
magistrates of California, and therefore the authorities 
of California within their respective jurisdictions, sub- 
ject to removal from office by order of the governor." 
He authorized them "to continue in the practice and 
custom of the country," and to grant lots within the 
town-limits, but construed the word " grant " to mean 
" sell for the benefit of the municipality." The alcaldes 
were not to perform the marriage ceremony in cases 
where either of the contracting parties was a Roman 

About this time the spirit of change and uncertainty 
prevailed in many places, and there were numerous 
instances of violation of property-rights. Squatters 
were taking possession of lands near the missions San 
Jose* and Santa Clara, where, the previous winter, they 
had been permitted to occupy some old buildings. The 
San Jose* alcalde was ordered to remove them. Troops 
were sent to the disputed lands ; but a compromise was 
effected, and the settlers agreed to pay a small rent 


until the true limits of the mission-property should be 

The authority of the alcalde, in all cases between 
citizen and citizen, was decided to be the same as under 
the Mexican law, and to include minor cases in which 
citizens and soldiers were involved. An officer was 
reprimanded in 1848 for interfering in such a case, and 
for " sending a file of soldiers to rescue a disputed sad- 
dle from the alcalde's juzgado" 

Indian troubles occurring in September, 1847, regu- 
lations were issued that all peaceable Indians should 
procure protection papers from the alcaldes of their re- 
spective districts. In December a letter from Colonel 
Mason urges the Indian agent to have them appoint 
alcaldes among themselves for their own better govern- 
ment. A later proclamation imposed a fine of one 
hundred dollars on persons convicted before an alcalde 
of selling liquor to Indians. 

During October, 1847, a sailor who had stabbed the 
mate of the ship " Vesper " was turned over to the 
alcalde of San Francisco for trial. " In the old alcalde 
courts of California," Colonel Mason writes, "the 
alcalde tried such cases; and when the sentence was 
death, the governor either ordered the execution, or 
sent the case to Mexico for further advice." Some 
time in November, one Anastacio Ruiz of San Vicente, 
San Diego County, charged with murder, was tried be- 
fore a jury of twelve presided over by the alcalde, 
Colonel Mason authorizing them to inflict capital pun- 
ishment. He was probably acquitted, as the case is 
not again mentioned in the California Documents. 

Although the acting governor had appointed alcaldes 
to fill all vacancies, yet in most cases he asked the 
people of the district to signify by petition their pref- 


erences. In 1847 native Californian alcaldes were in 
charge in only four or five towns on the coast. Every- 
where else Americans ruled. At Sonoma a town- 
council was elected, and the alcalde issued certificates 
of election. At San Jose* the town-council of six was 
twice voted for, and considerable difficulty followed; 
but the matter was settled by the appointment of a 
committee of three to examine the returns. 

Dec. 20, 1847, an American alcalde who applied for 
information was told by Colonel Mason, that, " in cases 
of horse-stealing, a fine, and hard labor on publiS works, 
and in aggravated cases fifty lashes in addition, is in 
accordance with the old California practice." A month 
or so later, a commercial case, tried in San Jose* before 
an alcalde and a jury of six men, was appealed to Colo- 
nel Mason, who denied it on the ground that there was 
no higher court. 

San Jose* pueblo at this time had two alcaldes, the 
first being an American, the other a Spaniard. These 
two officers appointed a town treasurer, who gave bonds, 
and at once entered upon the discharge of his duties. 

The alcalde of San Luis Obispo, early in 1848, organ- 
ized a party of thirty settlers to check the depredations 
of Indians who had been stealing cattle, and acted as 
their leader. Colonel Mason offered to furnish them 
ammunition if called upon to do so. 

In March, 1848, there was but one alcalde, Elam 
Brown, in all the "Contra Costa and San Joaquin 
region," a territory some hundreds of miles in extent. 
Stephen Cooper had just been appointed alcalde at 
Benicia, the new town north of Carquinez Straits. 

The various alcaldes in California were notified by 
Colonel Mason, that " notes and accounts contracted in 
the United States cannot be legally enforced and col- 


lected in California until the United States shall or- 
ganize a territorial government in this country, and 
extend her laws over the same." No debts made else- 
where could be collected in California until the State 
constitution was in full operation. 

By the close of October, 1848, the evil effect of the 
immigration caused by the gold excitement began to 
be shown in some places. Several murders were com- 
mitted. Three men were tried by an alcalde and jury 
at San Jos6 pueblo, for robbery and attempted murder 
of two returned miners, found guilty, and promptly exe- 
cuted. Colonel Mason wrote : " I shall not disapprove 
of this course, and shall only endeavor to secure to 
every man charged with a capital crime a fair trial by 
a jury of his countrymen." A Mr. Reed and his entire 
family, ten persons in all, were murdered at Mission 
San Miguel ; and the perpetrators were captured, tried 
before an alcalde jury, and hung. Other murders 
occurred ; and some of the accused were given jury-trial, 
some were tried before an alcalde without a jury, some 
were lynched. 

The most important alcaldeship in California, and 
that which probably contains the most complete and 
valuable records, was that of San Francisco. Its his- 
tory from the days of the marine pueblo or embarcadero 
of Yerba Buena, established in 1833, to the days when 
the last alcalde under the military governors resigned 
his position, and was re-elected as the first mayor under 
the State laws and legislative Act of Incorporation, 
will sufficiently show the continuity of the office, and 
the importance of its archives. 1 No order actually 

1 The Spanish archives kept in San Francisco are the basis of many 
valuable real-estate rights. They embrace the expediente or record of 
proceedings; the petitions, maps, decree, and titulo or title-deed of nu- 


announcing the establishment of the pueblo was ever 
issued ; but its existence was assumed through all the 
changes, revolutions, and confusion of the last years ot 
Mexican rule, as amply shown in Hon. J. W. Dwinelle's 
argument for the pueblo land-titles. 

Nov. 27, 1835, the people of Dolores Mission held 
their first election, and chose J. J. Estudillo as alcalde. 
There was then but one dwelling, the tent of an English 
trader named Richardson, on the Yerba Buena cove. 
An adventurous American, Jacob P. Leese, procured, 
after much difficulty, permission to lay out a new town, 
and by July 4, 1836, had built a shanty of rough boards 
as a trading-house for the rancheros about the bay. 
The only other building in the vicinity was an Indian 
temiscal, or sweat-house. The presidio contained no 
garrison, and only one resident, a superannuated sol- 
dier named Pina. The rule of Alcalde Estudillo ex- 
tended over the entire peninsula ; but he lived upon an 
extensive ranch on the southern shore of the bay, in 
what is now Alameda County, and spent little time at 
mission or pueblo. Extreme simplicity of life and man- 
ners prevailed among the inhabitants. 

Several changes in the alcaldeship took place; and 
in 1839 the franchises, books, and papers of presidio, 
mission, and pueblo, appear to have come into the pos- 
session of J. P. Guerrero, the alcalde, who assumed 
jurisdiction over all except the immediate possessions 
of the Mission Dolores. All the grants made by this 
alcalde before the war have been held by American 

merous grants; the formal books Tamas del razon of 1828; the Jimeno 
Index, or list of grants, and its continuation, the Hartnell Index; and 
the evidences of the approval of the departmental legislation. There 
are five hundred and seventy-nine complete Spanish grants, and threo 
hundred and fourteen incomplete or inchoate ones, recorded in these 


courts to have been made in the course of his ordi- 
nary duties. After the American ships took possession, 
General Kearney appointed Washington Bartlett as ma- 
gistrate and justice, and gave him the right to give 
away town-lots ; also, a little later, ordered the sale of 
certain water-lots. These orders constitute the earliest 
American titles to real estate in San Francisco. The 
title of the United States to the public domain was 
held to relate back to the time of the occupancy of the 
country, 1 when Mexican laws ceased, except as re-estab- 
lished by military authorities, as they were in most 

Alcalde Bartlett, and his successors Hyde and Leaven- 
worth, exercised control over San Francisco affairs at a 
turbulent period. As soon as the war closed, Colonel 
Mason, and his successor General Peter Kiley, attempte 
to unite the civil and military functions of government ; 
and an anomalous condition of affairs followed. There 
was, for a time, nothing to set things in motion ; and 
neither law nor administration of justice existed except 
so far as exemplified in the alcalde courts, which had 
known no checks and had taken no vacations. San 
Francisco was growing rapidly ; and the local customs 
and simple code of a rude Mexican population, known 
in written forms to but few, chiefly dependent on verb- 
al processes and instantaneous decisions, were suddenly 
required to fulfil the complex and varying needs of an 
active and enterprising people, carrying on immense 
business transactions, and sincerely anxious to base 
them on the laws of the United States. Governor 
Mason by proclamation enforced the Mexican civil law 
in its main features, and set Messrs. Halleck and Hart- 

1 See "Woodworth vs. Fulton, 1 Cal. Rep., 295; Reynolds vs. West, 
Cal. Rep., 333. 


nell at work to make a translation and digest of such 
parts of the laws of 1837 as were judged applicable, and 
still in force. 1 The people, accepting all this as a sad 
but inevitable necessity, began to struggle towards 
local organizations and a State government. 

During this unsettled period, the "judge of first in- 
stance," or alcalde, sat each day in the little school- 
room on the plaza of San Francisco, trying cases, and 
rendering that speedy justice that was then more de- 
sirable than exact justice, since men's time, in those 
early days of 1849, was worth from sixteen dollars to 
one hundred dollars per day. The judge listened to 
brief arguments, announced his decision, took his fees, 
and called up another case : hardly once in a hundred 
times wat there any thought of an appeal to the gov- 
ernor at Monterey. Criminal jurisprudence, however, 
was in decidedly a bad way : neither jails, district funds, 
nor city organization existed ; so that sheriffs, guards, 
and other officers had to serve without pay, and sel- 
dom, until the community was fully roused, could a 
trial be had in cases demanding capital punishment. 
For lesser crimes, lashes or hard labor on the streets 
could always be imposed. 

The powers of the alcalde increased apace, and vari- 
ous difficulties between that officer and two rival town- 
councils early in 1849 culminated in the formation of 
an independent organization called "The Provisional 
Government of San Francisco." 2 Its chief feature was a 

1 Ready for publication in July, 1849, pp. 40. Printed in the appen- 
dix to Debates in the Convention of California. J. Boss Browne, 1850. 

2 Early in 1849 the citizens of Sonoma and of Sacramento had elected 
similar district assemblies. In San Francisco, Feb. 12, the people to the 
number of five hundred assembled, organized, adopted a plan of gov- 
ernment, appointed an election-day, and asked the council and alcalde 
to resign. 


legislature of fifteen members. They met March 5, 1849, 
and swore " to support the Constitution of the United 
States and the government of this district." They or- 
ganized for business, began to make laws, and took the 
records of the town from Alcalde Leavenworth, with 
whom there was great dissatisfaction, and who had re- 
fused to resign as requested. It was a government de 

March 10 they addressed a letter to Major-General 
Persifor F. Smith, in which they pointed out the fact 
that the civil institutions of California were "neither 
Mexican nor American," but nondescript; that many 
ministerial and judicial offices of the pure Mexican sys- 
tem had been allowed to sink into disuse ; and that the 
only office retained was that of alcalde, which office 
" had been permitted to obtain and exercise a most ex- 
tensive and unlimited jurisdiction, wholly incompatible 
with the dictates of reason and justice. The right of 
appeal to the military governor has been denied or 
evaded." " Undoubtedly," the committee added, " this 
office of alcalde was continued " (through the interreg- 
num) "by the presumed consent of the people, and 
without any alteration, except that the right of appeal 
became inoperative. The jurisdiction, power, and duty 
of the office, partially limited by martial law, became, 
without it, unlimited and irresponsible. The tenure, 
duty, and property of the office, as existing under mar- 
tial law, without any definite or prescribed rules, was 
continued so, and the people left without any law in 
the adjudication of every civil and criminal issue, ex- 
cept the mere will of this single officer," who is " elected 
by the people," and "has all public records in his hands," 
and " owns no superior tribunal," not even to " compel 
him to discharge his obligations with his fellow-citizens 


as a private individual. . . . All the civil and crimi- 
nal issues that come before him are determined accord- 
ing to his own notions of right and wrong, directed 
and enforced by his mere will ; " and, as this emphatic 
document reiterates in closing, "without the right of 
appeal." But Provisional-Governor Riley, to whom a 
similar statement had been made, proclaimed the entire 
proceeding illegal, and the legislature without authority, 
forbade the payment of taxes to its subordinates, up- 
held the alcalde, and ignored the complaints formulated 
in the above letter to Major-General Smith. The alcalde 
afterwards resigned ; and a new election was ordered, 
resulting in the choice of Mr. J. W. Geary. It was a 
noteworthy struggle throughout, and the temper of the 
citizens was admirable. 

When a city government under the State Constitu- 
tion was established, the alcaldeship, with its varied 
powers, came to an end, and yielded up its ancient 
authority. Alcalde Geary, the last of the San Fran- 
cisco alcaldes, was re-elected Jan. 1, 1850, and in April 
was chosen city mayor under its first charter. Thus 
the institutional link was established : thus the office of 
mayor of San Francisco derived its historical descent, 
not from American and English sources, but from the 
semi-despotic rulers of Spanish pueblos, and the trib- 
ute-levying governors of mediaeval towns of Castilian 
frontiers. The term survives ; and San Francisco, me- 
tropolis of the Pacific Coast, still cherishes the title 
of "ancient and honorable pueblo." 

The story of the alcaldeship in San Francisco was 
repeated on a lesser scale in many other towns and 
villages of California. Everywhere it was of funda- 
mental importance during the transition era, and every- 
where it presented remarkable minglings of Mexican and 


American features. The alcaldes, whether elected or ap- 
pointed, were usually honest and intelligent, anxious to 
deal out justice with an impartial hand, well sustained by 
the American settlers, and obeyed by the Mexicans. But 
the confusion of authorities was vexatious and amusing. 
Some offices contained only a few worn and smoky Span- 
ish manuscripts, heirlooms of the last century ; in some 
the codes of Iowa, Illinois, Missouri, South Carolina, 
and other States, were in constant use ; in some were a 
few volumes of French, Spanish, German, or English 
law, that the new alcaldes had somehow obtained to add 
an air of impressiveness to the scantily furnished room. 
Before leaving this subject, and passing to the broader 
field of the mining-camp, we must sum up and define 
the duties and powers of the typical alcalde. We have 
seen that he always wielded great power, and sometimes 
wielded sole authority throughout his district, in both 
civil and criminal cases ; that he was the guardian of 
the common and town lands ; that he summoned courts, 
and appointed minor municipal officers; that he exer- 
cised an almost parental supervision over the inhabit- 
ants "of his pueblo. Studying his multifarious func- 
tions, we discover with admiration, not unmixed with 
awe, that one and the same person was often supreme 
judge, clerk of court, town-constable, sheriff, recorder, 
treasurer, justice of the peace, land-officer, government- 
agent in land deliveries, 1 superintendent of roads, town 
board of health, board of school-trustees, arbitrator in 
petty disputes, general advisory board for young and 

1 A petition for a land-grant was often, in Spanish times, referred 
by the governor to an alcalde to report on. The last of the steps in 
judicial procedure in land-grants was the formal delivery of the tract, 
along with a map, by the alcalde of the district in which it lay, after 
examining the bounds. This ceremony was akin to the " livery of seizin " 
of English common law. See also United States vs. Pico, 6 Wall. KJG. 


old, and even, near the coast, judge in admiralty to pro- 
nounce upon all marine cases. One and the same room 
was often the police-court, probate-court, civil-court, 
criminal-court, court of equity, court of appeal, land- 
office, council-hall, and conciliation court; it was also 
bed-room, dining-room, kitchen, library, and drawing- 
room of the busy, potent, and ubiquitous alcalde. Stran- 
gest fact of all in this unique combination, the lordly 
alcalde palace which sheltered such an army of officials 
was probably, in the mines at least, an edifice of can- 
vas, with an empty nail-keg for a chimney-top. In the 
pueblos of the coast, the alcalde assembled himself in 
some old Mexican house, under yellow roofing-tiles 
moulded years before by serfs of the mission, and be- 
side priest-planted gardens of olive and orange. One 
American alcalde of the transition period lived and 
held court in a house of zinc, whose outside measure- 
ments were less than twelve feet in length and breadth. 
The law in which these men dealt was as concentrated, 
and free from waste and surplus, as were the houses in 
which they dwelt. The various functions of govern- 
ment were performed without clashing, by this happily 
invented alcalde-system ; judicial jealousies, and brow- 
beating of lesser officers, were absolutely unknown. In 
the nature of the case, nothing could be less permanent 
than such an all-containing office as that of the alcalde 
in its prime ; but nothing could well be more influential 
and arbitrary while it lasted. Its widest freedom and 
its fullest development were not in the quiet pastoral 
and agricultural districts of the coast, but in the midst 
of the whirling excitements of the famous mining-camps 
of '48 and '49. The alcalde of the Sierra is the per- 
fected American type ; but so rich was the period, that 
this forms but a small part of its institutional harvest. 



THE four preceding chapters have been devoted to a 
study of Spanish-American institutions, and their influ- 
ences on early California. The remaining chapters of 
this work deal with the organization and government, 
by citizens of the United States, of large and isolated 
mining-camps ; returning in some cases to primitive 
forms, sometimes using and modifying the Mexican 
alcaldeship, sometimes adopting methods suggested by 
New-England town-meetings, but always aiming to 
quell disorder, and protect property and life. They 
attempt to describe what manner of men these miners 
were, and with what customs, laws, and usages camp 
and district were ruled. They discuss the influence 
these miners exerted, directly and indirectly, upon the 
political organization of California; and the acceptance, 
in American jurisprudence, of principles originated by 
gold-diggers in the folk-moots of the Sierra. 

One of the most entrancing chapters of this nine- 
teenth century's eventful history is that which narrates 
the gold-discovery of 1848, the rush of anxious wealth- 
seekers to California, and the rapid growth of new insti- 
tutional life among people thus assembled from all parts 
of the world. When American pioneers conquered the 
Mississippi Valley, they made it the stepping-stone to 
more difficult victories. The sons of the men who set- 



tied Kentucky and Ohio crossed the mighty river, and 
took possession of Iowa and Missouri: their sons, in 
turn, have made the term " West " no longer applicable 
to the great valley ; they have even shattered the phrase 
into fragments, and so have given us the South-West 
of New Mexico and Arizona, the North- West of Idaho, 
Oregon, and the Puget-sound basin, the Central-West of 
Colorado, Utah, Nevada, and California. The all-com- 
pelling magnet which drew peaceful armies to these 
wastes and mountains of the western third of the conti- 
nent, there to build great cities, there to organize pros- 
perous communities and powerful States, was a flake of 
virgin gold found on a California hillside thirty-six 
years ago. 

That was the year of revolutions in Europe ; of barri- 
cades in Paris, Berlin, Vienna, Milan ; of Louis Blanc's 
44 ministry of progress," and Louis Napoleon's deceitful 
presidency ; of students in arms, and petty princes abdi- 
cating in haste their pasteboard thrones ; of liberal con- 
stitutions, national assemblies, and a Sclavonic congress ; 
of Lombardy, Schleswig-Holstein, and Hungary in arms, 
the last, under the leadership of Kossuth, to make her 
death-struggle for freedom. On the Bourse, and in 
Lombard Street, the kings of the financial world were 
noting the signs of coming storm, even as the year 
began ; but the event of most importance to the money- 
markets of Europe occurred unheralded before the 
* 4 Revolution of February." Let us note the place and 
the manner of the occurrence. /It was one hundred and 
seventy miles east of the Pacific Ocean ; it was in the 
grizzly-haunted mountains of an obscure and neglected 
province only a few months before owned by Mexico, 
thinly populated by tribes of degraded Indians, idle 
Spanish-Americans, musical-ton gued Kanakas, wander- 


ing trappers, and a few Anglo-Saxon farmers and specu- 
lators ; it was Jan. 19, 1848, and about a fortnight be- 
fore the actual signing of the Treaty of Guadalupe 
Hidalgo, which gave the United States 522,955 square 
miles of territory, including this obscure El Dorado, for 
the trifling sum of fifteen million dollars. Some laborers, 
on this California hillside, were digging a water-ditch to 
supply a flour-mill that was being built by the feudal- 
like lord of a vast tract over which wild oats waved, 
wild flowers bloomed, and herds of antelope roamed, 
mingling undisturbed with bands of cattle and horses, 
and even venturing at times within sight of the massive 
oaken gates of the adobe-built fort where this active, 
courtly, enterprising, and generous adventurer had 
established his authority as lord of " New Helvetia." l 

Captain Sutter, at that important era in early 1848, 
swung his malacca cane, pulled his trim military mous- 
tache, gave crisp orders to his Indian alcalde, his com- 
mander of the troops, his general superintendent, his 
manager of cattle, and his head farmer; paid his two 
hundred laborers with pieces of tin stamped with num- 
bers representing days' work, and redeemable at his 
storehouses; kept open house for every traveller, ex- 
plorer, or government official : he was, in a word, the 
most vital, sinewy, and picturesque figure in all Alta 
California, beside whose manliness the plotting, irasci- 
ble, treacherous, dishonest governors who disgraced the 

1 Captain John A. Sutter in 1841 received from Governor Alvarado 
a grant of eleven leagues in the Sacramento Valley, and built a fort 
where the city of the same name now stands. He was commissioned 
" representative of the government, and officer of justice on the northern 
frontier." The comparison to the old courts palatinate is irresistible. 
He purchased from the Russians their extensive claims on Bodega Bay, 
and thus, perhaps, saved the United States from many subsequent diplo- 
matic difficulties. 


closing years of Mexican rule, sink into utter insignifi- 
cance. His title appeared unimpeachable, his possessions 
secure under the American flag, his colony enterprise 
well managed and certain of success. But the discovery 
of a flake of gold, lying concealed in the red hillside 
soil twenty miles away, set forces in operation that 
blighted and destroyed all his plans. 

January nineteenth, while unconscious S utter gov- 
erned his little kingdom, the workmen at Coloma, hav- 
ing finished their ditch, lifted the water-gate ; and the 
clear mountain torrent leaped gurgling and foaming 
along its new-cut channel, uncovering a piece of virgin 
gold, first recorded nugget of American California. 1 
This precious lump, smaller than the first joint of a 
child's forefinger, gleamed in Marshall's mill-race, at- 
tracted human eyes, was tested in a locked room by 
roused and excited men, and caused a rush that ended 
Sutter's multifarious operations, bidding the hides rot 
in his tanneries, his wheat fall to the earth ungathered, 
his herds wander untended, and perish at the hands of 
outlaws. The fame of this discovery drew to the spot, 
with magic power, the population of the whole terri- 
tory ; so that, a few months later, but five men were 
left in San Francisco, ships swung sailorless at anchor, 
and soldiers deserted their colors. All Alta California 
was concentrating in the mines. Thus the memorable 
gold-rush began. 

Soon the news went abroad to all the world. Piles 
of California nuggets lay in the windows of banking- 
houses, gazed at by thousands. The fact that in the 
new placers unskilled, uneducated, and penniless men 
were able to gather from fifty to five hundred dollars 

1 Small placers had been found by Mexicans near the coast in 1.S28, 
1833, and 1838. See M. Castanare's letter to President of Mexico, 1844. 


in gold-dust, each day they worked, was calculated to 
produce a profound impression. Mockers were silenced, 
doubters were swept into the current. Before the close 
of the year, fifty thousand of the healthiest and most 
energetic young men of the nation were on their way 
to California. Meanwhile the five thousand men who 
were fairly at work in the mines in 1848 dug out over 
five million dollars in gold-dust. Numbers of small 
parties from Oregon arrived before July, but the vast 
body of gold-seekers known afterwards as the "Argo- 
nauts " did not reach the Pacific Coast until early in 
1849. The organization of the smaller mining-com- 
munities of 1848 must be considered before we can 
discuss the more complex elements of later camps. 

When, early in 1848, mining began at Coloma, near 
Sutter's Mill, Captain Sutter himself had alcalde pow- 
ers over the region. That autumn Mr. Belt was elected 
alcalde at Stockton. The two thousand Americans who 
were living in California in February, 1848, were nearly 
all in the mines before the end of June ; and most of 
them knew what an alcalde was, knew that they had 
no legal right to elect any other officer, and knew that 
Colonel Mason, the de facto governor, was the only 
other authority. But there was no general acceptance 
of Sutter as alcalde. Some of the very first miners 
attempted to own, hold, control, and rent to others, a 
large and valuable mineral-bearing tract. After paying 
rent for a short time, the new-comers, who were in the 
majority, began to equalize matters, and adopt laws 
respecting the size of " claims." Nothing in the early 
history of these camps is more evident than the unpre- 
meditated and unsystematic nature of their first pro- 
ceedings. Officers were never elected until they were 
needed to give an immediate decision. And, as we have 


said, local customs in regard to the " amount of groum 
a man could mine " took form before officers were foi 
ally chosen. Every one knew that most of the lan< 
on which they worked was government land : the use 
it belonged to all alike until such time as the govern- 
ment made other regulations. Equality of ownershi] 
was the only logical conclusion. Here, then, the lai 
of the camp had their beginning. Long before lawles 
ness and trouble with foreigners arose, long before th< 
first California gold had reached New York, "claims 
of a definite size were being measured out in the mining 
camps for each gold-seeker. The ownership of land 
was the beginning of organization ; its ownership 
equal parts is significant of the form of society tl 
prevailed, for an unconscious socialism it certainly was. 

The mines put all men for once upon a level. Clothe 
money, manners, family connections, letters of inl 
duction, never before counted for so little. The whole 
community was substantially given an even start in the 
race. Gold was so abundant, and its sources seemed 
for a time so inexhaustible, that the aggrandizing power 
of wealth was momentarily annihilated. Social and 
financial inequalities between man and man were to- 
gether swept out of sight. Each stranger was wel- 
comed, told to take a pan and pick, and go to work fc 
himself. The richest miner in the camp was seldom abl 
to hire a servant ; those who had formerly been glad 
serve others were digging in their own claims. Tl 
veriest greenhorn was as likely to uncover the rich< 
mine on the gulch as was the wisest of ex-professo] 
of geology ; and, on the other hand, the best claim 
the river might suddenly " give out," and never 
yield a dollar. The poorest man in camp could have 
handful of gold-dust for the asking from a more su< 


cessful neighbor, to give him another start, and help 
him " hunt for better luck." No one was ever allowed 
to suffer: the treasure-vaults of the Sierra were too 
near, and seemingly too exhaustless. 

To a little camp of 1848 (so an old miner writes me) 
a lad of sixteen came one day, footsore, weary, hungry, 
and penniless. There were thirty robust and cheerful 
miners at work in the ravine ; and the lad sat on the 
bank, watching them a while in silence, his face telling 
the sad story of his fortunes. At last one stalwart 
miner spoke to his fellows, saying, 

" Boys, I'll work an hour for that chap if you will." 

At the end of the hour a hundred dollars' worth of 
gold-dust was laid in the youth's handkerchief. The 
miners made out a list of tools and necessaries. 

" You go," they said, " and buy these, and come back. 
We'll have a good claim staked out for you. Then 
you've got to paddle for yourself." Thus genuine and 
unconventional was the hospitality of the mining-camp. 

The early camps of California did more than merely 
to destroy all fictitious social standards. They began 
at once to create new bonds of human fellowship. The 
most interesting of these was the social and spiritual 
significance given to the partnership idea. It soon 
became almost as sacred as the marriage-bond. The 
exigencies of the work of mining-claims required two 
or three persons to labor together if they would utilize 
their strength to the best advantage. The legal con 
tract of partnership, common in settled communities, 
became, under these circumstances, the brother-like tie 
of " pard "-nership, sacred by camp-custom, protected 
by camp-law; and its few infringements were treated 
as crimes against every miner. Two men who lived 
together, slept together, took turns cooking, and wash- 


ing their clothes, worked side by side in dripping claims, 
and made equal division of returns, were rightly felt to 
have entered into relationships other than commercial. 

There soon were larger associations to work deep 
claims, or turn the channels of rivers ; but each such 
association came into existence when it was needed, 
not a moment sooner. Nowhere in the mines was 
there any planning ahead: men were too busy, and 
time too precious, for that. The result was a degree 
and quality of unhampered, untroubled freedom, to 
which it is hard to find an historic parallel. Society, 
reduced to its original atoms, began to shape itself 

One of the elements in early camp-life consisted of 
"companies," or groups of associates who had come 
from the same place, or had travelled together for 
mutual comfort and protection. Many of these com- 
panies had organized, and made rules for their own 
government, before they left their homes. Some were 
from the coast-region, some from Oregon ; and in 1849 
many such parties arrived across the plains, or by sea. 
Sometimes these companies formed separate camps, 
sometimes only a group in a larger camp, but usually 
the bond of unity was preserved.- The Oregonians 
"hung together" remarkably well, and exercised the 
best of influence. Some of them had helped to organ- 
ize local government and a legislative body among the 
pioneer Americans in the Willamette Valley. Peter 
Burnett, who became the first governor of California, 
was one of the earliest to start from Oregon, where he 
had been a poor and hard-working farmer. He organ- 
ized a large company among his neighbors, was chosen 
captain, and guided them to the mines. 

Ryan, in his " Adventures in California," gives the 


rules of a small mining-company of whom he was one. 
Slightly abbreviated, they read as follows : 

" (1) That we shall bear an equal share in all expenses, 

" (2) That no man shall be allowed to leave the company with- 
out general consent till we reach the mines. 

" (3) That any one leaving with our consent shall have back his 
original investment. 

" (4) That we work together in the mines, and use our tools in 

" (5) That each man shall retain all the gold he finds, but must 
contribute an equal portion of our daily expenses. 

" (6) That we stand by each other. 

" (7) That each man shall in turn cook, and do his share of 
the drudgery. 

" (8) That any one guilty of stealing shall be expelled from 
tent and claim, with such other punishnien.t as a majority of OUT 
company decide upon. 

" (9) That no sick comrade be abandoned." 

These rules, we observe, do not provide for an appeal 
to the general body of miners, nor do they recognize 
any higher court than the law of the majority of the 
company. It is the idea of family rule and family jus- 
tice, as opposed to tribal authority or to the supremacy 
of the whole body of assembled freemen. But this 
tendency played little part in actual mining-life, though 
a few cases occurred where men were punished by their 
associates, no others interfering, not through indiffer- 
ence so much as because of acquiescence. The rule 
.that " each man shall cook in turn " was probably sup- 
plemented by the unwritten proviso, still dear to West- 
ern camp-life, that " no man shall grumble at the cook's 
failures, under penalty of cooking for twice the usual 

When we compare the rules of different companies 
organized to go to the mines, we find considerable 


variation. Quite a number provided for an equal divis- 
ion of all the gold found. This was certainly a spirit 
that many tendencies of camp-life developed, but there 
were opposing forces of much more powerful nature. 
That chiefly which in the "flush times" prevented 
any general acceptance of the idea of equal division of 
profits among all the miners of a group, or even of a 
camp, was the fact that men like to take risks, run 
chances, and have the intoxicating excitement of sud- 
den gains. The miners of '48 believed with all their 
hearts that there was gold enough for all ; that the 
turn of the poorest miner would come ; but that, as 
they often said, " gold belongs to the finder, and to no 
one else." 

Several of these companies formed to go to the mines 
provided for disbandment at the end of six months' 
labor. Quite a number forbade their members to use 
ardent spirits, except as medicine. Some arranged for 
a certain percentage of each member's gains to be paid 
over to the captain in trust for sick or unfortunate 
comrades. But enough has been said to give a general 
idea of their organization. 

As soon as the great value of the mines was known, 
and crowds of persons began to hasten thither, the 
necessity for having " wholesome regulations and laws, 
with a view to the security of personal property and the 
prevention of disputes among those engaged in mining," 
began to present itself to the military authorities at 
Monterey. There were no disturbances in the mines, 
however : the only crimes reported were from the coast- 
region. But it was suggested that the entire mineral 
belt should be laid off in lots, by a public land-agent 
and a surveyor, and that they should then, under proper 
regulations, allow miners to occupy and work these lots, 

THE DAYS OF '48. 115 

requiring them to pay a fee, or ground-rent, to the gov- 
ernment. While this was under consideration, so many 
soldiers deserted, that the governor threatened to con- 
centrate the remaining troops in the mining-districts, 
and take military possession. One company, stationed 
at Sonora, lost thirty-seven men out of sixty. 

In July, 1848, there were about two hundred men at 
work on the American Fork, at " Mormon Diggings," 
twenty-five miles from Sutter's Fort. Colonel Mason 
and Lieutenant (now General) W. T. Sherman were 
making a tour of the mines ; and the first official report 
about that region is dated at Monterey, Aug. 17, im- 
mediately after their return. Along the whole route, 
houses were vacant, and farms going to waste,. At 
the lower mines, the hillsides were strewn with can- 
vas tents and bush arbors. Some of the miners used 
tin pans, some used closely woven Indian baskets ; but 
the greater part had a rude machine known as the 
cradle. This required four men to work it properly. 
A party 1 thus employed averaged one hundred dollars 
a day. fMining-camps were fairly established on the 
American Fork, the South Fork, the Yuba, Feather, and 
Bear Rivers, and on various tributaries.^ Colonel Mason 
was informed that about four thousand men were at 
work in the entire gold-region. The labor was very 
hard, but all seemed prosperous. In many camps, two 
ounces was considered but an ordinary yield for a, day's 
work. A small, shallow rock-channel, a hundred yards 
long and four feet wide, was pointed out, where two men 
had obtained seventeen thousand dollars in seven days. 
From another small ravine, twelve thousand dollars had 
been taken. The principal store at Sutter's Fort re- 
ceived, in payment for goods sold in nine weeks, some 
thirty-six thousand dollars in gold-dust. A company 


of seven miners hired fifty Indian helpers to carry 
gravel to the " cradles," worked seven weeks, and ob- 
tained two hundred and seventy-three pounds of pure 
gold ; they paid off the Indians, and each of the seven 
partners had about thirty-seven pounds for his share. A 
private soldier who was given twenty days' furlough 
went to the mines, where in one week he made fifteen 
hundred dollars, with which he returned and reported 
himself for duty. The cash value of gold in the mines 
was twelve dollars per ounce ; in trade, sixteen dollars. 

These instances are from Colonel Mason's report to 
the Adjutant-General. He also relates an occurrence 
to which he was eye-witness. At Weber's brush-built 
store, a man picked up a box of seidlitz-powders, and 
asked its price ; he was told that it only cost fifty cents, 
but was not for sale ; he offered an ounce of gold, and 
was refused ; but, promptly raising his offer to an ounce 
and a half, he bore off the desired article in triumph. 

Colonel Mason gives the most decided testimony as to 
the good behavior of the community. Crimes were very 
infrequent : peace and order prevailed. He naively ex- 
presses his surprise that no thefts or robberies had 
been committed in the gold-district, although every 
one lived in tents, bush houses, or in the open air, 
and frequently had about their persons thousands of 
dollars' worth of gold. He makes no allusion what- 
ever to any elected officers in the various camps. 

It was a matter of serious reflection to him, how the 
rights of the government in the land could best be 
secured. Considering the character of the people en- 
gaged, he resolved not to interfere. He suggested two 
plans : one, to grant licenses to work tracts of ground 
of a hundred yards square, at rents of from a hundred 
dollars to a thousand dollars per year, at the discretion 

THE DAYS OF '48. 117 

of an appointed superintendent; the other, to survey 
the district, and sell to the highest bidder, in tracts of 
twenty or forty acres. The latter plan he preferred, 
but no steps were ever taken to carry either of them 
into execution. In a later letter, he proposed levying 
a percentage on the gold found. 

In August, Indian troubles led to the establishment 
of a small military post in the Sacramento region ; but 
it exercised no supervision or authority over the camps 
of the miners, though it was situated on Bear River, 
near some of the richest placers. The next year troops 
were sent to Taylor's Ferry, on the Stanislaus, partly 
to quell Indian difficulties, and partly to prevent an 
apprehended collision between the Americans and the 
foreigners along the Tuolumne; but "the reports of 
hostilities had been greatly exaggerated." Throughout 
the various letters, proclamations, and official actions of 
the de facto governor of California in 1848, nothing is 
more evident than the complete way in which the 
mining communities were left to their own devices. 
Even General Riley in his visit, a year after Colonel 
Mason's, told the miners that "all questions touching 
the temporary right of individuals to work in particular 
localities of which they were in possession, should be 
left to the decision of the local authorities," meaning 
alcaldes and other officers by that time installed in 
many camps. 

Letters from pioneers, and all printed accounts, agree 
in the general features of mining-life in the later months 
of the summer of 1848. /Scattered over a large terri- 
tory, the men of the various camps dwelt together in 
peace and good-fellowship, without any representatives 
of the United-States Government in their midst. \ Legal 
forms and judicial machinery were as nearly non-exist- 


ent as it is possible to imagine in a civilized country. 
] The "social-contract" ideas of Rousseau and his fol- 
lowers seemed to have suddenly found a practical ex- 
pression.] The unwritten, unformulated law that ruled 
each camp was the instinct of healthy humanity to mete 
out equal justice to all. There was no theft, and no 
disorder ; few troublesome disputes occurred about 
boundaries and water-rights. The miners assembled to 
discuss in open meeting the size of claims that should 
be allowed, and the will of the majority was cheerfully 
accepted by the entire camp. The size, however, varied 
materially : most of the early camps thought that ten 
feet square was quite enough, or, in some cases, ten feet 
in width on the stream, extending from the base of the 
ravine to the centre of the channel ; fifteen feet square, 
twenty feet square, and more, were allowed in later 
camps. Ardent prospectors used to tell stories of new- 
found placers "where four by four was enough for a 
claim," but no camp ever adopted so small a standard. 

Definite bounds for the separate camps that after- 
wards became mining-districts did not at first exist. 
No surveyors went out from the camp to mark its sub- 
ject territory. The district grew simply and naturally 
about the most convenient assembly-place, gulch, or 
camp; so that, when fully organized, it conformed to 
purely physical boundaries. A relief-map of the Sierra 
region, with all the deposits of auriferotis gravel accessi- 
ble to the rude appliances of the early miners marked 
in yellow, would show, at a glance, how imperious the 
physical reasons were. One district must, by reason of 
its position, include the half-dozen camps of a circular 
valley girt round about with rocky peaks ; another must 
extend itself along a narrow ravine, and be five miles 
long and hardly an eighth of a mile in width. 

THE DAYS OF '48. 119 

The miners needed no criminal code. It is simply and 
literally true, that there was a short time in California, 
in 1848, when crime was almost absolutely unknown, 
when pounds and pints of gold were left unguarded in 
tents and cabins, or thrown down on the hillside, or 
handed about through a crowd for inspection. An old 
pioneer writes me, that " in 1848 a man could go into a 
miner's cabin, cut a slice of bacon, cook a meal, roll up 
in a blanket, and go to sleep, certain to be welcomed 
kindly when the owner returned." Men have told me 
that they have known as much as a washbasin-full of 
gold-dust to be left on the table, in an open tent, while 
the owners were at work in their claim a mile distant. 
Of course this condition of affairs was partly due to the 
ease of acquiring gold. Men, in some cases, pulled up 
bunches of grass from the gulches and hillsides, shaking 
them into buckets, thus obtaining many pounds of gold; 
one miner gathered sixteen thousand dollars thus in 
five weeks of work. Another miner " cleaned up " 
eighteen thousand dollars in one day's labor with pan 
and pick. Certainly it was easier to earn money than 
to steal it, but it was infinitely safer also. In later days, 
for a man to be caught sluice-robbing was to sign his 
own death-warrant ; with the miners of '48, whipping, 
banishment, or hanging was likely enough to have been 
inflicted upon the robber of claim or tent. For the 
criminality of theft was brought squarely home to each 
man's conscience, and to the entire community. Con- 
sidering all the circumstances, a man capable of steal- 
ing from his comrades in these busy, friendly camps, 
was hopelessly hardened, was capable of all the crimes 
of the Decalogue. 

Throughout this Arcadian era, there was not only no 
theft, but the bonds of fellowship wore strong and sin- 


cere among all the miners of the camps. In some dis- 
tricts where the American element kept strongly in the 
majority, the entire " flush period " from 1849 to 1853 
was marked by such unity. But in most camps disturb- 
ances increased ; human leeches and parasites lowered 
the healthy tone of the community ; and the miners 
drew farther apart than in the days when their first 
tents were pitched beneath the lofty Sierra pines, in 
clumps of chapparal and manzinita. 

The miners themselves noticed how rapidly disturb- 
ances increased in number a few years later. " We 
needed no law," writes an old pioneer, " until the law- 
yers came ; " and this idea is repeated in a thousand 
forms. " There were few crimes," says one correspond- 
ent, " until the courts with their delays and technicali- 
ties took the place of miners' law." This is, in truth, 
the persistent prejudice against lawyers that has existed 
among frontiersmen (nor among them alone), in every 
age of the world. Poetry and fiction have always been 
severe upon the "cozening, cheating, subtle-tongued 
lawyers." Dr. Johnson, as a withering and overwhelm- 
ing assault, once said of an opponent, "Although I 
should be sorry to calumniate any man, yet, sir, I be- 
lieve the gentleman in question to be an attorney." 
But it is pioneers who give the most frank expression 
of this time-honored opinion. And, although the fact is 
not generally known, there was a time when one-half of 
the world tried, but of course unsuccessfully, to live 
without any lawyers. When Spain established her colo- 
nies, every one of them petitioned the king, in the most 
earnest and anxious terms, to allow no lawyers to sail 
for America ; because they desired to live in peace and 
prosperity, freed from the malice of men and the malign 
presence of attorneys. As loyal Catholic subjects they 

THE DAYS OP '48. 121 

prayed to be protected from the whole " lean and ras- 
cally " legal fraternity. The gallant soldier of fortune, 
Vasco Nunez de Balboa, wrote to the king, saying, 

" One thing I supplicate your majesty : that you will give orders, 
under a great penalty, that no bachelors of law should be allowed 
to come here ; for not only are they bad themselves, but they also 
make and contrive a thousand iniquities." 1 

Pioneers of New Spain, and pioneers of golden Cali- 
fornia, were equally in earnest in their denunciation of 
lawyers, and were equally at fault in the analysis by 
which they reached such conclusions. In views of this 
sort, we have a curious confusion of ideas, a curious 
substitution of effect for cause. The conditions of soci- 
ety do not change because of the lawyer's arrival : he 
comes because the conditions of society are already 
changing, and there is, or is about to be, a demand for 
his labor. Though we grant all that the pioneers say 
respecting the Arcadian simplicity, and total freedom 
from difficulties, of the camps of the earlier gold-period, 
we must not conclude that this absence of lawlessness 
was necessarily due to the absence of lawyers. There 
were plenty of them, working as quiet citizens in their 
claim-ditches, and waiting until there was a demand for 
attorneys and the machinery of courts. How could 
there be much lawlessness where so few temptations to 
crime, and so few opportunities for its commission, ex- 
isted ? Men could quarrel, could steal, could kill each 
other; but nine out of ten of the misdemeanors and 
crimes that appear in the docket of an ordinary crimi- 
nal court were impossible in the mining-camps, while 
ninety-nine hundredths of the ordinary civil cases were 
equally out of the question. Land-titles all similar, 

i Helps's Spanish Conquest, p. 338; note, Carta el Rey, Jan. 20, 1513. 



transfers verbal, commercial transactions for cash, bor- 
rowing and lending simply a matter between individ- 
uals the best of lawyers would have starved in such 
a community. As society grew more complex, tempta- 
tions and opportunities increased ; and by the time the 
machinery of a State was set in operation, California 
presented, as regards land-titles, mining-cases, and a 
thousand other subjects, so many legal complications, 
that for a time it became the paradise of lawyers. 

By the close of 1848, mining was actually in progress 
for a distance of two hundred miles along the axis of the 
Sierra. Colonel Reading was at work with his Indians 
on Clear Creek, Shasta County ; and General John Bid- 
well, in like manner, on Feather River. When winter 
came, most of the miners returned to their homes in the 
valleys, in San Jose*, Monterey, Sonoma, or San Fran- 
cisco. Before the summer of 1849, the pioneers of 1848 
had been overwhelmed and lost in the gold-rush of that 
eventful year. The peace and freedom of the early 
camps gave way to a new order of things ; and, out of 
chaos and confusion, the organizing faculty of the race 
began to bring settled government. But so marked, so 
characteristic, so different from all later types of miners, 
was the pioneer of 1848, that it has even been said, that 
with that year " all that was staid and primitive in or 
about the mines of California vanished ; with it ended 
the old civilization and the old scenes." l This, however, 
is only true from the stand-point of a general observer : 
from the institutional stand-point, the camp-organizations 
of 1849-53 had their beginnings in the camp-organiza- 
tions of 1848. 

1 Henry de Groot: Recollections of California Mining-life. Pam- 
phlet, pp. 1C. San Francisco, 1884. 



THE general features of the organization of the "min- 
ing-courts," that were in many cases found necessary 
towards the close of 1848, can easily be described. 
There were no permanent officers, except where the 
alcalde plan was adopted, as in instances hereafter 
described; neither were there any written laws, or 
any records of proceedings. Any one who desired 
could call a meeting. A person who thought himself 
wronged would tell his friends, and they would tell 
others, till the miners of the region would assemble if 
they thought the cause sufficient; but, if not, would 
ignore the call. Some important meetings grew out of 
informal discussions, among groups of miners, as to the 
best regulations for mutual benefit and protection. As 
soon as "mining-districts," so called, began to be laid 
out, they assumed exceedingly definite boundaries as 
regarded the actual gold-bearing territory, but were 
very indefinite regarding size and shape. Each district 
included certain gulches, ran to the top of certain 
divides, took in certain flats and ridges, and would 
have presented a very irregular appearance on a map. 
The district might include several camps, or but one, 
according to convenience. The term " camp " is prop- 
erly used to express the nucleus of the district, the 



tent town to which the miners returned at night. The 
discovery of new mines might at any time create new 
camps, but not necessarily new districts, until its miners 
in camp assembled made new laws, and separated them- 
selves from the jurisdiction of their former laws. 

At the first meeting called to organize a camp in 
a recently discovered mineral belt, the boundaries of 
a district were drawn so as to include not only the 
claims of all the miners present, but also all the un- 
claimed ground that seemed easy of access, and likely 
to be valuable. If, however, the district proved too 
large for convenience as a political unit, the dissatisfied 
miners would post up notices in several places, and call 
a meeting of those who wished for a division of terri- 
tory, and a new district. If a majority favored such 
action, the district was set apart and named. The old 
district was not consulted on the subject, but received 
a verbal notice of the new organization. Local condi- 
tions, making different regulations regarding claims de- 
sirable, were the chief causes of such separations. In 
most of these earlier cases, district and camp were 
one and the same : the camp was the unit. Disagree- 
ments between two camps, as camps, were never heard 
of. Cases of lesser camps uniting themselves for gov- 
erning purposes with larger ones were of later occur- 

There were no county lines to consider, for this was 
before the organization of the State. A number of 
districts were therefore laid out, through which county 
lines were discovered to pass when surveyed a few 
years later; but they retained their organization as 
separate political units. There are in northern Cali- 
fornia, at the present time, -several mining-districts that 
include within their boundaries territory under the 


jurisdiction of two counties. The State of Nevada, in 
its laws of 1866, ordained that previously created dis- 
tricts, through which county lines passed, should be 
allowed to retain their autonomy, and continue to enact 
local laws. In facts like these we find evidence of the 
institutional nature of the early camps, or districts, 
which thus created a local government area long before 
counties were established, and were able, when they 
chose, to maintain it intact. The decay of placer-min- 
ing was perhaps the only thing that prevented the later 
adoption of districts as universal divisions of the town- 
ship, or rather as areas of local authority that should 
disregard township and county lines much as English 
parishes, unions, school districts, and various local gov- 
ernment areas, intersect and overlap at the present 
time. 1 

The " mining-court " of the camp, in its earliest form, 
was simply the assembly of the freemen in open coun- 
cil. All who swung a pick, all who held a claim, boys 
of sixteen and men of sixty, took part in its delibera- 
tions. It was the folk-moot of our Germanic ancestors. 
If the citizens had been summoned to try an important 
case, they elected a presiding officer and a judge, impan- 
elled a jury of six or twelve persons, summoned wit- 
nesses, and proceeded to trial forthwith. Sometimes 
/ there was no jury; and the case was submitted to the 
assemblage without argument, and irrevocably decided 
vivavoce. Had A trespassed on B's claim? Was C's 
possessory right forfeited by absence, or neglect to 
work? and could D assume it, or was Da" claim- 
jumper"? Such were the questions usually brought 
before the "folk-moots" of the Sierra. Changes and 

1 See Local Government, Chalmers, chap, ii., English Citizen Series, 
Macmillan & Co., 1883. 


developments in this method of procedure occurred 
a year or two later, but the earlier camps seized upon 
the " folk-moot " plan with a true race-instinct. 

Two things there were, that no camp-assemblage ever 
attempted to regulate: no mining-court ever collected 
debts either for or against any individual, nor did it 
ever take cognizance of minor personal difficulties. As 
regards the first of these, the miners felt and said that 
it was disgraceful to dun a man for money. They held 
that honor between men, and the strength of social 
and business relations, is a far better protection to the 
lender than bond of Shylock and execution of sheriff. 
In one case, in one of the camps of '48, a miner, dunned 
for a small debt at an unseasonable hour of the night, 
took a lantern, went to his claim, washed out more 
than sufficient, tied it up in a shot- bag, and, return- 
ing to the tent, flung it in his creditor's face with 
all the force of a sinewy arm. Men had to settle their 
financial affairs and their petty quarrels among them- 
selves : that was mining-cainp doctrine. Of course 
friends would interfere to separate drunken men, or to 
prevent a fight: but the camp as an organization set 
out to protect life and property, not to meddle with 
what seemed trivialities; so it winked at pugnacious 
tendencies, and possessed the most liberal definition of 
eccentricity conceivable. How else should it secure its 
Sunday-afternoon amusements, and maintain its clowns 
and oddities ? 

Crimes against society found swift enough punish- 
ment. The thief, for instance, was publicly flogged, 
and expelled from camp ; forfeiting, of course, whatever 
mining-ground he had occupied. But the thieves were 
usually the hangers-on of the camp, the idle Mexicans, 
or South-sea Islanders, not the men who owned and 


worked claims. Stealing, as we have previously stated, 
involved a greater degree of crime than it possibly could 
in a more highly organized commonwealth ; because the 
social compact was simpler, and more clearly understood 
by all men. 

/ Late in 1848 the foreign element began to find its 
way to the mines, and compelled better organization 
on the part of the Americans. \ When Mexicans settled 
the noted " Sonoranian Camp, now the town of Sonora, 
in Tuolumne County, nineteen white men twelve of 
them Americans followed, and, a little later, held a 
miners' meeting, elected R. S. Ham as alcalde, and 
agreed to support his authority. This district, James- 
town, was known as the "American Camp." The 
Mexicans and Chilians were greatly in the majority in 
the region, and their numbers increased during the next 
year. Many of them were men of the worst charac- 
ter, and only the closest organization prevented a reign 
of lawlessness. The real struggle for control of the 
southern mines was, however, at a later period than 
'48. " Sonoranian Camp " obeyed the mandates of Al- 
calde Ham with reasonable cheerfulness, and the few 
miners' meetings held were devoted to making laws 
regarding claims- There was no official communication 
between Alcalde Ham and Colonel Mason, then act- 
ing governor of California : the camp was left to govern 

\ In the camps of '48, Americans learned what strength 
there was in organization ; but systematic development 
of mining-courts, alcalde-courts, and other forms of 
camp-government, can hardly be said to have existed 
until the next year. / The work of the better class of 
miners, during the winter af 184849, was closely con- 
nected with the beginnings of that larger life, State 


organization. The miners returning to their homes, 
forced by winter storms to desert their camps in the 
mountain gulches, began to seek for a remedy for 
certain no longer endurable evils that were afflicting 
the body politic. American miners who had lived in 
peace and friendliness all summer in their camps, had 
formed new bonds of fellowship, had more closely ce- 
mented former bonds, and had proved their ability to 
protect and govern themselves, were now to take the 
initiative in several remarkable organizing efforts. 

A " memorial," at a later period presented to Con- 
gress, reviews the political history of California. 1 It 
says, in effect, that, " as early as 1847," many Ameri- 
cans in California advocated the establishment of a 
civil Territorial form of government ; that, in October 
of that year, the military contribution tariff was estab- 
lished in Calif ornian ports, and rigorously enforced, but 
never once resisted though extremely onerous; that 
the overland immigration of 1847 strengthened the de- 
sire for a more American form of government; that 
the military power continued taxation without repre- 
sentation, and afforded inadequate protection to life and 
property ; that the gold-discovery occurred, and in April 
the towns were deserted, all industrial pursuits were 
abandoned, and " a pall seemed to settle upon the coun- 
try ; " that in August the news of the treaty with 
Mexico was received, but the existing order of things 
was nevertheless continued. It describes an unsettled 
and unstable order of things, and a dissatisfaction and 
even a profound discontent as existing along the Cali- 
fornia coast in the summer and fall of 1848. It then 

i Memorial presented March 12, 1850, by Messrs. Gwin, Fremont, 
Wright, and Gilbert, senators and representatives elect from California. 
App. to Debates in Convention, Washington, 1850. 


proceeds to use the following remarkable language re- 
garding the influence of the miners: 

" Upon the coming-on of winter, the great majority of the miners 
returned to their homes in the towns. They came rich in gold- 
dust ; but a single glance at the desolate and unthrifty appearance 
of the territory convinced them that other pursuits than that of 
gold-digging must receive a portion of their care and labor . . . 
They felt, as all Americans feel, that the most important step they 
could take, and that most imperatively called for by the wants of 
the inhabitants, was the establishment of a stable system of gov- 
ernment, which would command the respect and obedience of the 
people whose property it protected, and whose rights it preserved. 
Congress had adjourned without providing a Territorial govern- 
ment ; and the public had settled into the firm conviction that the 
de facto government was radically defective, and incapable of an- 
swering the public wants." 

This ample recognition of the important place in 
State-organization taken by the returned miners appears 
to be fully borne out by the facts. A large public 
meeting was held at San Jose*, Dec. 11, 1848, at which 
the people of California were asked to organize in 
districts, and elect delegates to a convention for the 
purpose of forming a "provisional Territorial govern- 
ment," to go into immediate operation, and remain in 
full force until superseded by Congressional action. 
The plan was heartily welcomed and indorsed at mass- 
meetings held in San Francisco, Dec. 21 and 23; in 
Sacramento, Jan. 6 and 8 ; in Monterey, Jan. 31 ; and 
in Sonoma, February 5. Returned miners were promi- 
nent men in all these meetings. The very inclement 
weather, and impassable condition of the roads, had 
caused nearly two months to intervene between the 
San Jose* meeting and the Sonoma meeting, and had 
prevented proposed meetings in other districts; but 
the five districts mentioned comprised more than three- 


fifths of the whole population of California, and they 
elected delegates to a convention to be held early in 
March. Part also of this movement, was the elec- 
tion, early in the year 1849, of "district legislative 
assemblies " for Sacramento and Sonoma. The legis- 
lature elected in San Francisco, for local reasons, was 
of a somewhat different type, and was chosen at a 
later date. The earlier assembly of Sacramento, which 
aimed to govern the entire surrounding region, was 
more directly the result of mining-organizations than 
were the Sonoma and San Francisco assemblies. But 
all three of them disbanded peaceably in obedience to 
Governor Bennett Riley's orders. By the time the 
Territorial Convention assembled, the majority saw 
that California was too wealthy and populous for a 
Territorial government ; and they at once issued an ad- 
dress to the people, recommending a Constitutional Con- 
vention, which took place in September, 1849, at the old 
pueblo of Monterey. 

In all the important political events which began 
with the San Jose* meeting of December, 1848, and 
ended with the adoption of a State constitution, the 
men who had toiled, struggled, suffered, and " stood by 
each other " in the mining-camps were leading spirits. 
Some of them returned to the mines ; some engaged in 
other and more profitable occupations in the valleys and 
coast-towns, for few of the pioneers of '48 had accumu- 
lated fortunes. 

The preceding pages have in no wise exaggerated the 
intrinsic value of the work done by the " men of '48 " 
in settling the foundations of society. Throughout 
our examination into the methods of later camps, and 
the laws made by various districts, we shall be con- 
stantly finding traces of earlier institutional orgaiii- 


zation. The debt of the Pacific Coast to the few 
thousands of miners who first explored the Sacramento 
and El Dorado placers is greater than historians have 
heretofore acknowledged. They were the pioneers of 
the pioneers: without their brave and loyal work as 
American citizens, the greater and more dazzlingly 
successful work of that strange and complex era which 
followed could never have been accomplished. 



A KNOWLEDGE of the characteristic features of the 
mining-days of 1849 is essential to a full appreciation 
of the good sense and political wisdom shown by the 
miners as a class. Merchants, mechanics, farmers, ex- 
isted but to supply the miners; and the gold of the 
mines was the chief resource of California. Four-fifths 
of the able-bodied male population were living in the 
mineral belt, or were on their way thither, when the 
working-season of 1849 opened. Only four years be- 
fore, in the summer of 1845, there had been but five 
hundred Americans in California; in February, 1848, 
but two thousand ; by December, 1848, this number had 
grown to six thousand ; by July, 1849, to fifteen thou- 
sand ; and by December, 1849, to fifty-three thousand. 
Chiefly owing to the gold-rush of 1848-53, the centre 
of population of the United States moved eighty-one 
miles farther west. Within four years after the spring 
of 1849, the population of the new State was three 
hundred thousand ; and more than two hundred and 
sixty million dollars had been dug from the gold-fields. 
The gold-product of California for all the years from 
1848 to 1883 inclusive has been over twelve hundred 
millions of dollars, or three-fourths of the entire gold- 
product of the United States during the past century. 
But, great as this total is, it would have seemed little to 



the minds of the excited Argonauts of 1849. Only the 
stories of the fortunate wealth-seekers had gone abroad 
to the world, and men were prepared to believe any 
thing about California. 

Dr. Stillman, in his "Seeking the Golden Fleece," 
says that at the close of January, 1849, "sixty vessels 
had sailed from Atlantic seaports, carrying eight thou- 
sand men, and seventy more vessels were up for pas- 
sage." Bayard Taylor, speaking more particularly of 
the land-journey, said that " it more than equalled the 
great military expeditions of the Middle Ages, in magni- 
tude, peril, and adventure." John S. Hittell writes: 
" From Maine to Texas there was one universal frenzy." 

One of the " pilgrims " wrote a song, which was soon 
heard on every street-corner of the Atlantic cities, in 
which he proclaimed, 

" Oh ! California, that's the land for me ! 
I'm bound for the Sacramento, 
With the washbowl on my knee." 

As in the excitement of '48, so again in '49 a nucleus 
of camp-organization often began in these companies of 
pilgrims, by land or by sea, who became acquaintances 
and friends, who decided to proceed to the same district 
of the mining-region, and who often formed associated 
bodies of workers. The men who crossed the plains 
together, or were for months in the same ship, hold 
annual re-unions at the present time, on the Pacific 
Coast. Each year their numbers lessen, but the sur- 
vivors cling to the observance with ever-strengthening 

There were many interesting features about this 
great onset, all the world seeming to be in haste to 
occupy this hitherto neglected region. Armies of enii- 


grants were attracted by the magic of its name, and 
toiled wearily in wavering lines across the continent. 
Many a mountain valley was thus settled long before it 
could have been reached in the natural course of agri- 
cultural progress, and the entire frontier of the West 
was borne forward : the immemorial race-impulse of the 
Aryan had re-awakened with all its ancient force. In 
vain the elders of lonely Deseret, and the dupes of the 
Book of Mormon, tried by falsehood and crime to roll 
back or turn aside this dreaded and hated advance 
of American civilization. Some of the "Latter-day 
Saints " joined the current, but most of them were faith- 
ful to their shrine. 1 But the fierce, impetuous, resist- 
less human torrent swept on its way to the Pacific 
Coast : it ran in haste, it fairly leaped over obstacles, as 
one sees mountain rivers curl down into hollows, and 
curve over bowlders, till, in the rush of its advance, the 
smallest inequality of the channel is reproduced in its 

The mining-camps, whose white tents and rude cabins 
rose so rapidly beside these rivers o~this new-Celehis 
in early '49, have found an enduring place in litera- 
ture. The Argonaut himself has become one of the 
heroic figures of the past, and is likely enough to sur- 
vive, as real and strong a type in the story of America 
as Viking or Crusader in that of Europe. But it 
is the place held by the Argonaut as an organizer 
of society, that is most important. He often appears 
in literature as a dialect-speaking rowdy, savagely pic- 
turesque, rudely turbulent : in reality, he was a plain 
American citizen cut loose from authority, freed from 

1 The Mormon leaders told their followers, that gold was to pave 
streets and cover houses; and, if they were faithful, they should have 
more than sufficient in their own territory when the proper time ciuue. 


the restraints and protections of law, and forced to 
make the defence and organization of society a part of 
his daily business. In its best estate, the mining-camp 
of California was a manifestation of the inherent capa- 
cities of the race for self-government. That political 
instinct, deep rooted in Lex Saxonum, to blossom in 
Magna Charta and in English unwritten constitution, 
has seldom in modern times afforded a finer illustration 
of its seemingly inexhaustible force. Here, in a new 
land, under new conditions, subjected to tremendous 
pressure and strain, but successfully resisting them, were 
associated bodies of freemen bound together for a time 
by common interests, ruled by equal laws, and owning 
allegiance to no higher authority than their own sense 
of right and wrong. They held meetings, chose offi- 
cers, decided disputes, meted out a stern and swift 
punishment to offenders, and managed their local affairs 
with entire success ; and the growth of their commu- 
nities was proceeding at such a rapid rate, that days 
and weeks were often sufficient for vital changes, which, 
in more staid communities, would have required months 
or even years. 

The gateway to the mines was San Francisco. In 
January, 1849, when Rev. D wight Hunt, who had for 
several months preached to the returned miners throng- 
ing the streets, organized- the "First Congregational 
Church," the population of the city was less than fif- 
teen hundred. A little later, the first ship-loads of 
immigrants began to arrive ; and, though every new- 
comer felt obliged to visit the mines to see for himself, 
yet many persons soon returned to enter into business ; 
and San Francisco had fifteen thousand inhabitants 
before the close of the year. 

A San-Francisco pioneer of '49 writes : 


" Gold-dust, provisions, and tools were safe without police. We 
had no disturbances at first, no rows, and no murders. Men gam- 
bled, for that was an old California vice ; * but they did so as 
honestly as it can be done. We had no poor men, and labor was 
at a premium everywhere." 

Before very long, however, an organization called 
"The Hounds " began to rob Spanish-Americans, and 
committed other outrages ; and, July 16. the law-abid- 
ing citizens, who had in vain complained of the ineffi- 
ciency of the alcalde, met, organized a court, elected a 
judge and attorneys, and by fines and imprisonments 
put an end for some years to ruffian supremacy. 

The harbor of San Francisco became populous with 
ships of every nation. When scholarly Richard H. 
Dana, Harvard graduate, adventurous sailor before the 
mast, had visited Yerba Buena harbor, while the Mexi- 
can "eagle and nopal flag" yet drooped from the pre- 
sidio staff, there was not a single vessel in the harbor, 
not a single boat on the broad bay, and but one house 
where San Francisco now stands. Herds of deer came 
down to the water's edge ; and, as in Kotzebue's time, 
sea-otters swam within easy gun-shot. 2 Soon after, a 
Russian vessel entered the harbor, but in a few days 

1 Gambling in California was permitted under Mexican rule, and 
under the military government of |6-'49. It was even a source of 
revenue to the ayuntamiento of San Francisco in August, 1849. It 
was a legalized and important pursuit, followed with zeal by Mexicans, 
French, and Americans. See Hittell, Hist. San Francisco, p. 236. 

2 Lieutenant Kotzebue visited San Francisco Bay in 1816, when Argu- 
ello was Spanish commandante, and Kuskoff ruled iu the Russian set- 
tlement at Bodega, thirty miles northward. Twenty Russians and fifty 
Indians captured two thousand sea-otters that season. Count Ad< llicrt 
Von Chamisso, that sensitive genius, author of " Peter Schlemihl," and 
Eschscholtz the botanist, were members of this expedition. The lat- 
ter's consonantal name is perpetuated in the most brilliant flower of 
the Pacific-coast flora, the rich orange-scarlet wild poppy of field and 


sailed away, and left the solitary hide-droger to its 
work. Less than fifteen years later the summer of 
1849 saw no less than five hundred and forty-nine sea- 
going vessels in the port. In the month of August 
four hundred large ships were idly swinging at anchor, 
destitute of crews ; for their sailors had deserted, swum 
ashore, escaped to the gold-fields. Thirty-five thousand 
men came by sea, and forty-two thousand by land, dur- 
ing the year. Australia, the Asian coasts, Africa, and 
South America contributed to the motley host that 
thronged the roads to the placers. 

Society was masculine, and most of the men were 
under forty. In the spring of 1849, there were but 
fifteen women in San Francisco. As one writer says, 
" Women were queens, children were angels." Bearded 
and weather-bronzed miners stood for hours in the 
streets to get a glimpse of a child at play. At a little 
later period, there were plenty of women who were 
"vile libels on their sex;" but the reverence that Cali- 
fornians of the gold-era paid to respectable women has 
received a tribute of admiring praise from all observers. 
Men often travelled miles to welcome "the first real 
lady in camp." A New-England youth of seventeen 
once rode thirty- five miles, after a week's hard work in 
his father's claim, to see a miner's wife who had arrived 
in an adjoining district. " Because," he said, " I wanted 
to see a home-like lady ; and, father, do you know, she 
sewed a button on for me, and told me not to gamble 
and not to drink. It sounded just like mother." 

New towns were laid out in the valleys to supply the 
camps, and those already established grew with aston- 
ishing rapidity. ^Stockton, for instance, increased in 
three months from a solitary ranch-house to a canvas 
city of one thousand inhabitants. Sacramento also 


became a canvas city, where dust-clouds whirled, and 
men, mules, and oxen toiled ; where boxes, barrels, 
bales, innumerable, were piled in the open air, no shel- 
ter being needed for months. For the City Hotel, Sac- 
ramento, thirty thousand dollars per year was paid as 
rent, although it was only a small frame building. The 
Parker House, San Francisco, cost thirty thousand dol- 
lars to build, and rented for fifteen thousand dollars 
per month. Speculation in promising town-sites soon 
reached as extravagant heights as it ever did in the 
Mississippi Valley or in the Pennsylvania oil-region. 
Every cross-road, river-landing, and ferry had its " cor- 
ner-lot speculators," who prophesied its future great-, 
ness. The "town of Oro," near the mouth of Bear 
River, had but one house, and soon lost even that. 
Linda, Eliza Featherton, Kearney, and dozens of others, 
paper towns of the lowlands, are familiar to all pioneers. 
The conditions under which business had to be con- 
ducted in San Francisco and at the interior towns were 
extremely trying and difficult. The only supply-mar- 
kets were so remote, that the greatest fluctuations in 
the stock of goods on hand were constantly occurring, 
against which no human foresight could guard. New 
York was nineteen thousand miles distant by the sea- 
route ; and about six months were required to send an 
order from San Francisco, and get the goods delivered. 
Oregon's few thousand pioneers had little to sell. China 
sent only rice and sugar ; Australia and Chili supplied 
some flour. Every thing else came from the Atlantic 
seaports. Lumber, worth four hundred dollars per 
thousand one month, would not pay for the freight four. 
months later; tobacco, once worth two dollars a pound, 
was tossed in the streets. Saleratus fluctuated between 
twenty-five cents and fifteen dollars per pound. The 


entire community was dependent for food and clothing 
upon other communities thousands of miles distant. 
And the rate of interest was ten per cent per month. 
( By the time goods reached the mountain camps, their 
cost was so enormous that most of the miner's gains 
went for necessaries of life.M Those who were very 
fortunate often indulged in curious and expensive 
whims and "extravaganzas," feeling sure that their 
claims would continue to yield treasure. They bought 
the costliest broadcloth, drank the finest wines, and 
smoked the best brands of cigars. " A wild, heedless, 
wasteful, dissipated set of men," is what one of the 
" forty-niners " calls his old comrades. Men who had 
been brought up to keep sober, and earn sixteen dollars 
per month, and save half of it, went to California, 
found rich claims, earned several hundred dollars a 
month, of which they might have saved three-fourths, 
but spent every cent in riotous living. Men who 
had been New- York hod-carriers paid out ten dollars 
a day for canned fruits and potted meats. But only a 
few years later, when the surface placers were all ex- 
hausted, these same unkempc sybarites returned to 
beans and pork, strapped up their blankets, and made 
prospect tours to other regions, taking their reverses 
more placidly than one could have thought possible. 

To many cheerful, impetuous, and intelligent men, 
the ups and downs of mining-life seemed full of wild 
fascination. To be there was to be a part of a scene 
that each thoughtful miner knew in his heart was as 

1 Mr. George F. Parsons, for many years editor of the Sacramento 
Record-Union, and author of the Life of James W. Marshall, the 
discoverer of gold in California, copied the following prices from the 
books of the Sutter Fort store : "Two white shirts, $40; one fine-tooth 
comb, $6; one barrel of mess pork, $210; one dozen sardines, .'55; two 
hundred pounds of flour, $150; one tin pan, $9; one candle, $3." 


evanescent as it was brilliant, an episode whose inten- 
sity corresponded accurately to its briefness. And, to 
many persons of this type, it certainly seemed as if the 
way to make the most of the era was to take a hand 
in every thing that came along. Reports filled each 
camp, almost every week, telling of new diggings where 
from a hundred to a thousand dollars might easily be 
collected in a day. Down came the tent-ropes, the 
claims were abandoned; the epidemic gold-rush fever 
had seized each Argonaut in the camp. They went to 
Gold Lake, Gold Bluffs, and a hundred other as loudly 
trumpeted regions, till the habit of following with 
swift feet each new excitement became as much a part 
of the Argonaut's nature as the habit of running after 
a fire is a part of the healthy boy's organization. The 
Argonaut was well enough aware that the blaze is very 
apt to be only a bonfire, or else to be over long before 
he arrives. But he could not bear to stand by, and see 
others run and hurrah : so off he started at the best of 
his speed, to come back, a few months later, "dead 
broke " financially, but wealthy in experience. 

Fortunately there were men of quite another type, 
whose clear brains and steady habits enabled them to 
lay aside a part of their gains, afterwards to push larger 
enterprises, to organize mining-companies, to dig great 
water-ditches extending for miles in a magnificent sys- 
tem of engineering. Some of them bought farms in the 
valleys, or entered into business in the towns and cities, 
retaining to the fullest degree their affection for the 
wild mountain realm where they first obtained a start 
in life. Even in the earlier fever-heats of the gold ex- 
citement, there were numbers of men who had come to 
California to remain, and make homes, who recognized 
vast resources other than mineral, and by whose un- 


swerving fidelity to justice the best elements of camp- 
life were evolved. The returned miners of 1848, and 
the home-hungry, home-creating few of the thousands 
of 1849, formed the nucleus of safety-committees and 
camp-courts of law. 

A fine example of this was afforded in what were 
called the Southern mines, the camps of Tuolumne, 
whose organization late in 1848 has been described in 
the preceding chapter. The several hundred dwellers 
in and about the Mexican or " Sonoranian " camp were 
re-enforced as early as July, 1849, by fully fifteen thou- 
sand foreigners, chiefly from Sonora, Chili, and the Isth- 
mus. Many of them came in armed bands, and made 
the country unsafe. Some of them were outlaws and 
desperadoes of the worst types. They brought degraded 
women with them, had fandangos and bull-fights, and 
were a thoroughly alien community. Opposed to them 
was the little camp of Americans who had elected their 
alcalde the previous autumn, and several other Ameri- 
can camps, well organized for self-protection, founded 
early in 1849. The foreign invasion (for it can be 
termed little else) was held in check, and finally turned 
back, only by the energy and "inborn capacity for 
creating order " displayed by some of the Americans. 
The methods taken by the Americans were not always 
wise or just: in many individual cases, cruelty was 
practised towards weak and inoffensive Mexicans, and 
their claims were taken from them, as has been done in 
innumerable cases along the south-west frontiers within 
the past few years. But the central fact of the neces- 
sity for organization on the part of the Americans 
remains undisputed. Men had been robbed, horses 
stolen, and the roads rendered unsafe for travellers. 
In some camps "good and true men" were at once 


elected as alcaldes ; in others there was the direct inter- 
vention of " miners' courts," such as adopted by some 
of the miners of '48 ; still a third form was the election 
of a committee of justice. Under all these forms, sup- 
ported by public opinion, the work of purification was 
done rapidly and well. Suspicious characters, both 
Mexican and American, were notified to leave ; crimi- 
nals were followed, captured, and punished. Although 
the camps southward from Placerville (then Hangtown) 
were undoubtedly more turbulent than the northern 
mines, they struggled against greater difficulties, not 
only in 1849, but at several subsequent periods, as we 
shall see in a later chapter. 

The mountain land over which mining became the 
chief industry of men, and to which all sea-roads and 
trails along the Sierra passes seemed to lead, was a re- 
gion fitted by nature to attract and secure the affections 
of a hardy and energetic race. Its physical features 
are most noble and inspiring, even at the present day 
when the valleys and foot-hills are subdued to agri- 
cultural purposes, and brought under a high state of 
cultivation. But when the miners of '49 began to 
pitch their tents in the wilderness, it was unfenced, 
unclaimed, and almost unexplored ; for the work of the 
previous year had only mapped out the leading features 
of the mineral belt. The unsurpassed wealth of what 
is now Nevada County was as yet undiscovered. Every- 
where the land had a charm that no language can de- 
scribe. Flowers of new species and wonderful beauty 
bloomed on slope and crag, trees of unparalleled grandeur 
stood in the forests, the climate of the foot-hills was like 
that of Italy. From the great and sea-like valley of the 
Sacramento, eastward through rolling, oak-clad hills to 
the broad plateau of the Sierras, and through wild forests 


and dim gorges to the granite heights and the pointed 
peaks covered with eternal snow, the ardent miners 
searched every gulch, traced every stream to its source, 
and in five years of eager, reckless toil did the work 
that in other communities would have taken a genera- 
tion. They spread out in every direction from the 
Sacramento and Feather-river region, searching ridge 
and ravine southward to the desert sands and borax 
deposits of Mojave, northward to the barren lava-beds 
of Modoc. They crossed the westward valley to explore 
the wildest and most difficult recesses of the Coast 
Range; established Redding Springs, afterwards Shasta 
City; rifled the Trinity basin of its riches; and dis- 
covered the placers of Klamath, Siskiyou, and Southern 
Oregon. They went waist-deep into the ocean, and 
brought back tales of beaches gold-spangled by 

" All the storms 

That hurled their ancient, white-topped, weary waves 
On California, since the world began." 

The flickering, beckoning will-o'-the-wisp that ever 
led them on was the hope of new diggings, of nuggets 
gleaming from the moss of mountain lakes, of 

" Beds of streams that evermore 
Washed down the golden grain, and in a year 
Paid to the treasury of the insatiate flood 
More than the subjects of the richest kings 
Yield to their despots in a century." 

But of all the writers who have attempted to express 
the splendid virility, the impetuous battle with nature's 
forces, the healthy outdoor atmosphere of happy, hearty 
toil, that the " miners of '49 " knew so well, none have 
said the right word in a better way than Fitz James 
O'Brien, poet, romancist, genial Bohemian, loyal friend, 


knightly soldier. Listen to the song of his " Sewing- 
bird " lyric : 

" Up in a wild Calif ornian hill, 

Where the torrents swept with a mighty will, 

And the grandeur of Nature filled the air, 

And the cliffs were lofty, rugged, and bare, 

Some thousands of lusty fellows she saw 

Obeying the first great natural law. 

From the mountain's side they had scooped the earth, 

Down to the veins where the gold had birth ; 

And the mighty pits they had girdled about 

With ramparts massive and wide and stout ; 

And they curbed the torrents, and swept them round 

Wheresoever they willed, through virgin ground. 

They rocked huge cradles the livelong day, 

And shovelled the heavy, tenacious clay, 

And grasped the nugget of gleaming ore, 

The sinews of commerce on every shore.'* 

I have visited the mining-region, the realm of the 
" Argonauts of '49." Titans have been at work there. 
The land for miles is like a battle-field where primal 
forces and giant passions have wrestled. Rivers have 
been turned aside ; mountains hurled into chasms, or 
stripped to the bed-rock in naked disarray. I have 
seen wild and steep ravines where each square rod once 
had its miner ; where stores, theatres, and banks once 
stood in the flat, and gold-dust ran in the streets, and 
every man carried his pistol, and a day of life contained 
more of healthy out-door existence and passionate en- 
ergy than does a year of life in a metropolis : and in 
those ravines once so populous a few old and trem- 
bling men, worn out before their time, and pitiful to look 
upon, creep down from their cabins to pick and moil 
among the crevices for the little gold left by the gallant 
"forty-niners;" and creep back to brood over memories, 


while year after year they watch with feelings of pain 
and almost anger the approach of gardens, vineyards, 
orchards, slowly re-subduing, in far more durable man- 
ner, the lost conquests of the Argonauts. 

Even to-day the smallest of these decaying camps is 
worth patient study. } In the hollows, grown over with 
blossoming vines, are acres upon acres of bowlders and 
debris, moved, sifted, and piled up by the hands of 
pioneers; on the hill's sunny slope are grass-covered 
mounds where some of them rest after their passionate 
toil, their fierce and feverish wrestle with hard-hearted 
fortune. Once this was Red Dog Camp, or Mad Mule 
Gulch, or Murderer's Bar : 1 now it is only a nameless 
canon, the counterpart of hundreds of others scattered 
over a region five hundred miles long by fifty miles 
wide, each one of them all once full to the brim and 
overflowing with noisy, beating, rushing, roaring, mas- 
culine life. Go down and talk with those ghostly in- 
habitants of the ancient camp, and they will set your 
blood tingling with tales of the past. Twenty years, 
thirty years, ago ? Why, it is centuries ! 

The saddest of all possible sights in the old mining- 
region is where there are not even half a dozen miners 
to keep each other company, but where, solitary and in 
desolation, the last miner clings to his former haunts. 
He cooks his lonesome meals in the wrecked and rotting 
hotel where a quarter of a century before, then young, 
gay, prosperous, and in his prime, he had tossed the 
reins of his livery-team to the obsequious servant, and 

1 Names of California camps, given in books of travel, are not always 
to be trusted: visitors expect an eccentric title for each ravine. But the 
real names were remarkable enough; such were the following: Loafer 
Hill; Slapjack Bar; Chicken-thief Flat ; Git-up-and-Git; Rat-trap Slide; 
Sweet Revenge; Shirt-tail Canon; You Bet; Gouge Eye. 


played billiards with the "boys," and passed the hat 
for a collection to build the first church ; he sharpens 
his battered pick at a little forge under the tree on 
which he helped hang the Mexican who had stabbed 
Sailor Bill (how famous Bill was for songs and horn- 
pipes in the El Dorado saloon whose roofless posts slant 
in the yielding earth !) ; he looks down in the canon 
where vines and trees hide all but the crumbling chim- 
ney of the house where the " Rose of the Camp " lived, 
sweetening their lives with a glimpse of her girlish grace 
and purity as she tripped over the long bridge to the 
little schoolhouse, and waved her pretty hand to her 
friends toiling waist-deep in their claims. But that 
was long ago : she married, and went to Europe, and 
is famous, he has heard ; now the bridge has fallen into 
the torrent, and snow-storms have shattered the school- 
house, and the end of the story is very near. 

Not one of all the thousands who hurried into the 
new camps of '49, who developed and over-crowded 
the old camps of '48, ever paused to consider how these 
camps would look if deserted ; nor, if some prospector's 
tale carried them on a frenzied gold-chase, did they 
glance back at the camp they left. The record of the 
gold-returns is sufficiently suggestive. In 1849 the 
miners took out, by official record, twenty-three million 
dollars ; in 1850 they increased this yield to fifty million 
dollars; and the probabilities are that twenty-five per 
cent of the gold discovered was not reported at San 
Francisco. By the summer of 1850, there was forty 
million dollars in taxable real estate in San Francisco, 
and as much more in the way of personal property, 1 
most of which had grown directly or indirectly from the 

1 " Gold in California." International Review, October, 1880. 


mining-interest. Yet, only four years before, Webster 
had said, in the United-States Senate, that California 
was worthless except as a naval station. 
( The typical camp of the golden prime of '49 was 
flush, lively, reckless, flourishing, and vigorous.^ Saloons 
and gambling-houses abounded; buildings and whole 
streets grew up like mushrooms, almost in a night. 
Every man carried a buckskin bag of gold-dust, and it 
was received as currency at a dollar a pinch. Every 
one went armed, and felt fully able to protect himself. 
A stormy life ebbed and flowed through the town. In 
the camp, gathered as of one household, under no law 
but that of their own making, were men from North, 
South, East, and West, and from nearly every country 
of Europe, Asia, South America. They mined, traded, 
gambled, fought, discussed camp affairs ; they paid fifty 
cents a drink for their whiskey, and fifty dollars a barrel 
for their flour, and thirty dollars apiece for butcher- 
knives with which to pick gold from the rock-crevices. 1 

" They talked," as one who knew them well has written, " a lan- 
guage half English and half Mexican. They learned to wash and 
mend their own clothes, and bake their own bread, and cook their 
own pork and beans. They were hardy, generous, careless, brave : 
they risked their lives for each other, and made and lost fortunes, 
and went on lonely prospect tours on foot among the snow-peaks, 
and grew old and feeble, and found that a new race that knew 
them not had arisen in the State they created. They died lonely 
deaths, or perished by violence, pioneers to the last." 

As about the typical camp there were too often loss, 
decay, and final desertion, so about the typical pioneer 
there were too often loneliness and sorrow, pathos and 
heroism. A few camps were germs of towns and cities. 

1 This sum was paid for a time by the miners in some districts of 


A few pioneers prospered greatly, and settled down into 
leading positions in the State their labors had helped to 
create. But the vital waste and destruction of the 
struggle overwhelm the observer with pity. The mines 
were no place for weaklings ; even strong, healthy, and 
earnest men often sank beneath the wearing excitement 
of that fervid life. But these rough and busy men, 
whose lives were so often only the saddest of tragedies, 
established and enforced a code of ethics governing 
their relations with each other and their property rights, 
enforced justice though without written law, and in the 
end created a system of jurisprudence that has won 
the approval and indorsement of the highest courts of 
the land. Sturdy, keen-witted, courageous, independ- 
ent, they left the impress of sterling natures upon all 
their primitive institutions. 

As we have seen, there were times in almost every 
camp when the rowdy element came near ruling, and 
only the powerful and hereditary organizing instincts of 
the Americans present ever brought order out of chaos. 
In nearly every such crisis, there were men of the 
right stamp at hand, to say the brave word, or do the 
brave act ; to appeal to Saxon love of fair play, to seize 
the murderer, or to defy the mob. Side by side in the 
same gulch, working in claims of eight paces square, 
were, perhaps, fishermen from Cape Ann, loggers from 
Penobscot, farmers from the Genesee Valley, physi- 
cians from the prairies of Iowa, lawyers from Maryland 
and Louisiana, college-graduates from Yale, Harvard, 
and the University of Virginia. From so variously 
mingled elements, came that terribly exacting mining- 
camp society, which tested with pitiless and unerring 
tests each man's individual manhood, discovering his 
intrinsic worth or weakness with almost superhuman 


precision, until at last the ablest and best men became 
leaders. They fought their way to the surface through 
fierce oppositions, and with unblenching resolution sup- 
pressed crime, and built up homes in the region they 
had learned to love. 



LET us now examine the testimony of visitors, trav- 
ellers, and government officials, and of miners who 
have since published their observations upon the con- 
dition of the camps during the flush period. Were 
these camps orderly and well-governed ? What impres- 
sion did they make upon impartial strangers? 

Ryan, in his " Personal Adventures in California," 

" The miners dwelt together in no distrust of one another, and 
left thousands of dollars' worth of gold-dust in their tents while 
they were absent digging. ... A determination to punish rob- 
bery seemed to have been come to, by all, as a measure essential 
to security." 

This was written of the camps of 1850, as a result 
of wide observation ; and he elsewhere alludes to the 
admirable manner in which the camps had been con- 
ducted from the first. 

We have before alluded to Colonel Mason's report 
on the mines of '48. Governor Riley, deciding to see 
the mines for himself, left Monterey, July 5, 1849, with 
Major Canby, Captain Wescott, Captain Halleck, Lieu- 
tenant Derby, and others, proceeded to Sacramento, and 
thence to the principal camps. After his return he 
wrote to Washington as follows : 



"Order and regularity were preserved throughout almost the 
entire extent of the mineral district. In each little settlement or 
tented town, the miners have elected their local alcaldes and con- 
stables, whose judicial decisions and official acts are sustained by 
the people, and enforced with much regularity and energy." 

In another place he says, 

" The alcaldes have probably, in some cases, exercised judicial 
powers never conferred upon them by law ; but the general results 
have been favorable ... to the dispensation of justice." 

The alcalde system, as adopted and modified by the 
miners, was all that fell under Governor Riley's obser- 
vation : but there were camps in the region he visited 
which were governed, perhaps quite as well, though 
in a much more primitive manner, camps ruled by 
a chosen committee, to whom all authority was in- 
trusted ; or governed only by the irregular assemblage 
of the miners, which we have before compared to a 
folk-moot. Governor Riley did not inquire into the 
minutiae of organization. He only knew, that, copying 
after the system of the old Spanish pueblos of the coast, 
the miners in the longer-established camps had chosen, 
and were obeying, alcaldes ; and, to assist these alcaldes 
in the discharge of their duties, had ingrafted upon 
the system the town-constableship of New-England 

Bayard Taylor was an appreciative observer of the 
camps. In his " Eldorado " he describes their political 
organization. "There was," he says, "much order and 
regularity. The miners had elected one of their num- 
ber alcalde (this was on the Mokelumne), before whom 
all culprits were tried." He says that several persons 
had been severely punished; some had their ears 
cropped, and others were whipped soundly. "It was 


a Spartan severity of discipline," all of which Mr. Tay- 
lor fully approves. In another place he says, 

" The disposition to maintain order, and secure the rights of all 
men, were shown throughout the mining-districts. In the absence 
of law, the people met, and adopted rules for mutual security. 
. . . There had been," he said, "previous to 1849, twelve or 
fifteen executions for murder and for large thefts. . . . Alcaldes 
were elected, who had power to decide all disputes or complaints, 
and summon juries. When a new placer was discovered, the first 
thing done was to elect officers. In a region five hundred miles 
long, inhabited by a hundred thousand people, who had neither 
locks, bolts, regular laws of government, military or civil protec- 
tion, there was as much security to life and property as in any 
State of the Union. The rights of each digger were definitely 
marked out and observed." 

These words of Bayard Taylor's were written of the 
camps of 1850 and 1851, but apply with almost equal 
force to the camps of 1849. Everywhere in southern, 
central, and northern camps, he reports a reign of order, 
under laws of their own creation ; and the sight fills 
him with admiration. 

One of the speakers before the First State Constitu- 
tional Convention addressed that body in October, 
1849, upon the permanent character of the towns built 
up in the mining-region, of which he was a resident. 
He added, 

" Every glen, every ravine, every canon, almost every hill-top, is 
lined and covered with the thousands and tens of thousands that 
are scattered over the whole country." 

He proceeded to speak of their peaceful prosperity, 
and the constant investment, in the larger towns, of 
capital dug from the mines. Other speakers before the 
convention alluded to the quiet and order preserved 
in the placer-region. 


Governor Peter H. Burnett, in his " Recollections," 
says : 

" The miners were engaged in a common pursuit, and exposed 
to common dangers. Property was almost held in common, a 
practical socialism of a very interesting type." 

Burnett says further, 

" We [the miners] had the right to establish a de facto govern- 
ment which would rest on the same basis as the provincial gov- 
ernment of Oregon. We held a meeting at Sacramento City in 
January, 1849, and elected Henry A. Schoolcraft first magistrate 
and recorder for Sacramento District." 

Mr. Burnett had then just left the mining-camps, 
where he worked during the summer and autumn of 
1848, and had opened a lawyer's office in Sacramento. 
The leadership of ex-miners was unquestioned in poli- 
tics and in society. 

A vivid account of life in the early days is furnished 
by Mr. Frank Marryat's "Mountains and Molehills." 
He speaks of " Murderer's Bar," with the swift river, 
the black obstructing rocks, the village of sun-bleached 
canvas; the miners, waist-deep, toiling to turn the 
course of the river, others in pits digging to bed-rock ; 
some alone, some in companies ; all life, vigor, and 
determination. He says in one place, that 

" In most mining-villages, indignation [over theft] was confined 
to ordering the offender to leave, or take the consequences. . . . 
The mining-population was allowed to construct their own laws 
relative to the appropriation of claims, and the system worked 
well. There was no interference on the part of the Legislature." 

This observation of Mr. Marryat's was made a year 
or so after the organization of State government, and, 
as we shall hereafter see, remained true of the mining- 
districts for many years. 


"Every digging," Mr. Marryat continues, "has its fixed rules 
and by-laws. All disputes are submitted to a jury of resident 
miners. In some cases, twenty men or so from one camp are 
met by an equal number from another camp." 

He proceeds to say that disputes sometimes arose, 
and even demonstrations with fire-arms, but that good 
sense always prevailed. He speaks of the by-laws of 
each district as recorded in the county office, and as 
sometimes being stringent, ill-defined, and conflicting. 
His own experience of their practical workings, how- 
ever, was as follows: 

"I have had my placer-claim of ten feet square encroached 
upon. I appealed to the crowd ; and a committee of three, being 
at once chosen, measured it from my stake; and, being found 
correct, the jumper was ordered to confine himself to his own 
territory, which he always did." 

Mr. Marryat's observations are particularly interest- 
ing on several accounts. He was an English univer- 
sity man, and adept with both pen and pencil. He 
entered heartily into the spirit of life at the placers, 
studying mining institutions with trained intellect ; and 
the time he visited the camps was after California had 
been divided into twenty-seven counties, and county 
government nominally established. Thus his state- 
ments regarding the amount of local government which 
each camp retained by tacit consent, and exercised 
whenever necessary, are of great importance. Com- 
mittees from different camps still met in consultation : 
informal appeals were still made to the crowd to right 
or prevent a wrong. In all essential particulars, the 
camp was still the " camp of '49." 

As late as 1857, " Blackwood's Magazine," reviewing 
books on California, and speaking of the entire gold-era, 


" It is an agreeable and unexpected feature in the mines them- 
selves, that order, justice, and courtesy reign there." . . . 

And again : 

" Patches of a few square feet, teeming with gold, are as sacred 
as if secured with title-deeds." 

J. D. Borthwick's " Three Years in California " is full 
of choice material for studies of this era. He describes 
the daily life of the gold-miners ; tells us of heaps of 
gold-bearing gravel piled up in some camps to lie un- 
guarded but safe until the rainy season, having been 
made personal property by the labor performed in heap- 
ing them together ; pays a hearty tribute of praise to 
the universal spirit of hospitality, the careless liber- 
ality such as led the Downieville miners to give fully 
five hundred dollars in gold-specimens to a lady who 
sang ballads for them at one of the first concerts ever 
held there. Mr. Borthwick speaks in many places of 
the ample security afforded by the mining-regulations. 
He also seems to have been struck by the sharply con- 
trasted social instincts and methods of organization dis- 
played by the American miners and the French miners. 
He says, in effect, that the Americans wandered about 
the mountains, often as solitary as grizzly bears, working 
like demons, and keeping their own counsel regarding 
their prospects or claims with all the stolidity of Turk- 
ish mutes. Sometimes the American miner worked in 
silence and loneliness upon a single claim, going back 
and forth night and morning, a truly dangerous, reso- 
lute, and deliberative animal. The Frenchmen, on the 
contrary, were never seen alone : their social instinct 
was irrepressible ; they went in groups to their work, 
and clustered together like buzzing bees. But when 
our solitary and reflective Americans found quartz or 


gravel that they thought would pay better to work 
in associated bodies, they came together at once in a 
way for which the sociable Frenchman showed slight 
aptitude. The Frenchman's bond of union was depend- 
ence, not mutual confidence: the American's reserve 
was really the source of his power, and the secret 
of his supremacy in every camp. Their loneliness 
meant resolution : therefore their organizations always 
meant business, and accomplished their appointed 

/ One of the interesting bits of evidence upon the 
condition of the camps of '49 is afforded by Dr. J. B. 
Stillman's "Seeking the Golden Fleece." He says 
there was "no government, no law;" but "more in- 
telligence and good feeling than in any country I ever 
saw. . . . Men are valued for what they are. . . . One 
feels that he has a standing here that it takes a man 
until he is old and rich to enjoy at home." This 
ignores the camp-laws, as unauthorized, but tacitly ac- 
knowledges the good order and peacefulness prevalent 
in the mining-region. On the subject of miners' gen- 
erosity, Mr. Bacon, now an Idaho journalist, and an 
old California miner, writes me as follows : 

"I have never lived in any community where there was less 
crime, or where people were more charitable, than they were in the 
early mining-camps of California. No one was ever allowed to 
suffer for necessaries of life, and nowhere were the sick neglected. 
I remember many instances where a miner with a broken consti- 
tution, who had become discouraged or unable to work, and desired 
to return to his family, was sent home by the miners, and, in addi- 
tion, was given one or two thousand dollars for a 'home-stake.'" 

Theodore Winthrop, that "bright, generous poet and 
novelist, saw the same characteristics in the hearty 
pioneers of the Pacific Coast, and rejoiced over " the 


rough sincerity impressed upon people by the life they 
lead in new countries." l 

Some of the darker portions of the picture are shown 
by Theodore J. Johnson, in his " Sights in the Gold- 
Region ; " and his views deserve careful consideration. 

" The thirst for gold, and the labor required to procure it," he 
says, " overruled all else, and absorbed every faculty. Complete 
silence reigned among the miners. They addressed not a word to 
each other for hours." 

He says, further, that although enduring great hard- 
ships, exposure, and often disease, the miners as a class 
obtained only a moderate remuneration. The average 
yield per miner was, he thought, only three or four 
dollars a day ; and not more than one man in a hundred 
made a fortune, and invested it safely away from the 
mines. Out of one hundred and twenty men who went 
around the Horn, and were at the same camps, "not one 
had great success." These views regarding the average 
yield of the mines to each toiler are well sustained by 
the official reports. The five thousand miners of 1848 
averaged one thousand dollars apiece, though many of 
them did not reach the mines till very late in the sea- 
son ; but the hundred thousand miners of 1850 dug out 
only half as much proportionately, working a longer sea- 
son, and with far better appliances. The gold-product 
of the State reached its culmination in 1853, then sink- 
ing year after year to a point below the total of 1849, 
but varying little during the past ten years. The in- 
troduction of capital and machinery has rendered it 
impossible to estimate the amount that each man's 
labor now produces. The annual gold-yield of the 

1 Theodore Wiuthrop, " Life and Letters." See also his description 
of the " appalling activity " of San Francisco, then the chief outfitting 
point for all the mines; p. 134. 


State has been, for a number of years, something over 
sixteen million dollars; in 1883 it was 116,500,000. 

Another very strong statement upon the nature of 
life in the mines comes from Mr. George F. Parsons, 
in his Life of Marshall, to which we have previously 
alluded. He says, 

" It was a mad, furious race for wealth, in which men lost their 
identity almost, and toiled and wrestled, and lived a fierce, riotous, 
wearing, fearfully excited life ; forgetting home and kindred ; aban- 
doning old, steady habits ; acquiring all the restlessness, craving for 
stimulant, unscrupulousness, hardihood, impulsive generosity, and 
lavish ways, which have puzzled the students of human nature who 
have undertaken to portray or to analyze that extraordinary period." 

He says that a true account of those times would be 
" so wild, so incredible, so feverish and abnormal," as 
to remind one rather of a description of a Walpurgia 
Night than of an era in real life. In another place we 
have this graphic picture : 

" Take a sprinkling of sober-eyed, earnest, shrewd, energetic 
New-England business-men: mingle with them a number of rollick- 
ing sailors, a dark band of Australian convicts and cut-throats, a 
dash of Mexican and frontier desperadoes, a group of hardy back- 
woodsmen, some professional gamblers, whiskey-dealers, general 
swindlers, or rural agriculturists ' as Captain Wragge styles them ; 
and having thrown in a promiscuous crowd of broken-down mer- 
chants, disappointed lovers, black sheep, unfledged dry-goods clerks, 
professional miners from all parts of the world, and Adullamites 
generally, stir up the mixture, season strongly with gold-fever, bad 
liquors, faro, monte, rouge-et-noir, quarrels, oaths, pistols, knives, 
dancing, and digging, and you have something approximating to 
California society in early days." 

Statements such as these concerning the overpower- 
ing excitement of the gold-search, and its evil effects, 
undoubtedly reveal a deep psychical truth. Evil men 
became more evil, miserly men more miserly, in the 


Sierra camps. There must have been many to whose 
souls this "yellow, glittering, precious gold" was a 
" most operant poison," making " black, white ; foul, 
fair ; wrong, right ; base, noble ; " and over whose 
wretched lives the spirit of the exiled, ill-starred, man- 
hating Athenian's terrible mockery prevailed in ghastly 
earnest, until they lived and died in the bitter faith 
that " this yellow slave " of the exile's scorn could 

" Knit and break religions ; bless the accursed ; 
Make the hoar leprosy adored ; place thieves, 
And give them title, knee, and approbation 
With senators on the bench." 

All in all, the most unfavorable and rabidly pessi- 
mistic account of California and of life in the mines, 
that has fallen under my observation, is Mr. Hinton R. 
Helper's " Land of Gold." l Writing as late as 1855, 
he says that the country had " no redeeming features ; " 
the land was " a desert ; " the customs of the people 
were atrocious ; murders were of daily occurrence, and 
men were lying sick and uncared-for in the streets of 
the towns ; it was the Nazareth of States, from which 
nothing except evil could come. To further prick the 
44 California bubble," Mr. Helper offers such items as 
the following : 

Loss by fires, 1849-54 $45,870,000 

Loss by freshets, 1849-54 1,500,000 

Shipping lost on the coast 5,060,000 

Total $52,430,000 

This certainly seems to show an astonishing degree 
of waste and loss. But the table is entirely unreliable. 

1 Land of Gold: Baltimore, 1855. Printed for the author. An in- 
tensely interesting work, chiefly by reason of Mr. Helper's unexampled 
talent for persistent pessimism. 


It furnishes the separate items of the fire-losses which 
go to make up that total of over forty-five million dol- 
lars, and by these items we can test its accuracy. The 
San Francisco fire of May 3, 1851, is stated to have 
caused a loss of twelve million dollars : Hittell, a most 
cautious writer, gives it as seven million dollars. The 
Sonora fire of 1852 is stated to have destroyed property 
worth two million five hundred thousand dollars : the 
Tuolumne County official directory places the loss at 
seven hundred thousand dollars. From a multitude of 
equally reliable sources, the grand total of over fifty 
million dollars appears to be at least one-third, and 
probably one-half, too great. 

From the fact of Mr. Helper's temperamental bias 
towards gloomy views of Pacific-coast life, manners, 
and institutions, his unexpectedly favorable evidence 
regarding the miners gains a peculiar importance. 

" There is," he remarks, " more real honesty and fairness among 
the miners than among any other class of people in California. 
Taken as a body, they are a plain, straightforward, hard-working 
set of men, who attend to their own business without meddling 
with the affairs of others; and I have found as guileless hearts 
among them as ever throbbed in mortal bosom. 

" Almost every bar," he continues, " is governed by a different 
code of laws, and the sizes of the claims vary according to locality. 
In one place a man may hold twice, thrice, or quadruple the num- 
ber of feet that are allowed him in another. One-fourth of an 
acre is an average-sized claim." 

Governor Richard J. Oglesby of Illinois was one of 
the pioneers of Nevada County, in "the days of '49 
and '50." In a letter, published in the history of that 
county, he says, 

" There was very little law, but a large amount of good order ; 
no churches, but a great deal of religion ; no politics, but a large 


number of politicians ; no offices, and, strange to say for my coun- 
trymen, no office-seekers. Crime was rare, for punishment was 
certain. I was present one afternoon, just outside the city limits, 
and saw with painful satisfaction, as I now remember, Charley 
Williams whack three of our fellow-citizens over the bare back, 
twenty-one to forty strokes, for stealing a neighbor's money. The 
multitude of disinterested spectators had conducted the court. 
My recollection is that there were no attorneys' fees or court- 
charges. I think I never saw justice administered with so little 
loss of time or at less expense. There was no more stealing in 
Nevada City until society became more settled and better regu- 

Among the men who "prospected" in the Nevada 
mines, during 1849, was the late Benjamin P. Avery, 
afterwards editor of " The Overland Monthly," and for 
some time United-States minister to China. Mr. Avery, 
and the late Samuel Williams, long literary editor of 
44 The San Francisco Bulletin," were two of the noblest, 
purest, and best-loved men ever connected with Pacific- 
coast journalism ; and their memories are kept green 
throughout the State they did so much to develop. A 
letter from Mr. Avery printed in Bean's Directory of 
Nevada County, in 1867, recounts his adventures in the 
mines, and gives a graphic picture of " the childhood of 
California." " I started from Mormon Island," he says, 
" late in October, 1849 ; rode a little white mule, with 
pork, hard-bread, and blankets packed behind me." 
He heard of "pound diggins" (two hundred dollars 
per day) near Caldwell's Upper Store, and at Gold 
Run, in the famous basin where Nevada City and 
Grass Valley now stand. There were about a dozen 
parties working the bars with dug-out cradles and 
wire and rawhide hoppers. A few tents were scattered 
over the flat. The " store " was a square canvas shanty, 
where mouldy biscuit sold for a dollar a pound, pork 


for two dollars, flour one dollar, and boots for six ounces 
of gold-dust per pair. He found good prospects, and 
returned for his comrades. Evidently there was as } T et 
no organization by which he could secure a claim, and 
hold it during his absence. He seems to have posted 
no claim, driven no stake ; and, when the party re- 
turned, the ravine Mr. Avery had prospected " was 
occupied from end to end by long-haired Missourians 
who were taking out their piles." They had organized, 
and staked out claims of thirty feet along the ravine ; 
and found them so profitable that "many a long-torn 
party took a quart tin pail full of gold-dust to their 
camp at night." The isolation of the place is suffi- 
ciently shown by the fact that " it cost two dollars and 
a half to get a letter to or from Sacramento." Mr. 
Avery afterwards prospected "in the savage wilds of 
the Middle Yuba, where only the grizzly and wildcat 
roamed the lofty purple ridge, four thousand feet above 
the sea." Eight years later he was editor and proprie- 
tor of a newspaper published there, in the midst of 
villages, churches, schoolhouses, gardens, vineyards, 
and hydraulic mines. 

An unvarnished account of pioneer experiences is to 
be found in Lawson B. Patterson's " Twelve Years in 
the Mines of California." Arriving in canvas-built 
Sacramento, July 29, 1849, the author set out, on foot, 
for Mormon Camp, where the early miners had taken 
out over a million of dollars. He afterwards pros- 
pected far into the wilds of El Dorado. "George- 
town Camp" contained several hundred tents, but 
there was not a single woman in the district. " Hud- 
son Gulch," in the same region, " is only three hundred 
yards long, but the first time it was worked it paid over 
fifteen hundred thousand dollars," and has been worked 


over and over perhaps a dozen times since. American 
miners began to find the need of business organization ; 
and in 1850 and 1851 a "company of one hundred 
members tunnelled in Cement Hill." They did most 
of their own work, and ran four distinct tunnels far 
into the solid rock before they pierced the basin of au- 
riferous gravel whose existence they suspected. Their 
association was reduced to six members, then rose to 
twenty, before success came. The total expenditure 
was one hundred and twenty-five thousand dollars, and 
yet the results paid well. Associations of miners ran 
twenty different tunnels into "Mameluke Hill," and 
sank many deep shafts, taking out over thirty-five hun- 
dred thousand dollars. The organization of the placer- 
camps was already leading to personal association for 
working the deeper deposits. 

We find notes from a careful observer of mining-life 
in E. S. Capron's " History of California." He tells us 
that the miners are mostly "persons in the- humbler 
walks of life," yet there are " no inconsiderable num- 
ber connected with the learned professions. Whoever 
attends one of their miners' meetings will be convinced 
that neither the fools nor the drones go to the mines. 
Let the visitor wend his dark way into the mountain 
drift, or clamber over heaps of rocks and earth, and 
leap wide artificial drains, or go to some river where a 
deep, broad eddy has allured the hopeful miner, or 
travel over miles of upturned earth to where a solitary 
toiler is at work under the exhausting sun, and he will 
meet the grave divine, the skilful physician, the shrewd 
lawyer, the professor, the philosopher, the gentleman 
of leisure, and the student, as well as the farmer, me- 
chanic, and common laborer. . . . Their time is es- 
teemed too precious to hunt, fish, or cultivate the soil. 


. . . Vagabond Mexicans, outlawed at home, make the 
miners their frequent victims." 

Of mining laws and customs, Mr. Capron gives a tol- 
erably accurate account. He says that the miners in 
public meetings had established courts " summary and 
signal in their proceedings ; " and that " their jurisdic- 
dion embraced all actions and proceedings, civil and 
criminal. In most cases, the presiding officer was an 
elected alcalde, aided by a sheriff." The spectators 
constituted the only court of appeals. Annual meet- 
ings of the miners regulated all laws regarding claims. 
The size of claims averaged sixty by one hundred feet, 
and they were numbered and registered. In earlier 
times meetings were held much oftener than once a 
year, and the great body of " local mining-law " had 
been thus created. The " imperious necessity for these 
enactments " was universally recognized. 
f Quotations might easily be made at much greater 
length, and from many more writers. Everywhere we 
find, among observers of mining-life, testimony to the 
success of the system of self-government adopted in 
the camps; and, in no less degree, testimony to the 
energy and simplicity of the miners themselves.) Some 
few among these observers give instances of abuse of 
mining-courts, of camp-justice that had for the moment 
degenerated into mob-rule. Cases are given where 
men's lives were saved by the prompt and cool courage 
of a few persons who insisted on another trial, or 
pointed out defects in the evidence. But we shall hear 
more of these things hereafter, in studying the local 
history of some of the notable camps. The main point 
to remember, so far, is the favorable impression made 
upon so many different writers, English, German, and 



REMINISCENCES of the pioneers of California often 
drift into print. Many a book, justly famous, has been 
hammered out of the virgin gold of stories told around 
the camp-fire by men who were a part of that eventful 
period. A number of pioneers, some of them leaders, 
some of them of the uncounted thousands who only 
followed, have written me, giving, to their best ability, 
accounts of the organization of various mining-camps. 
Their recollections are often hazy upon definite points ; 
but they all agree as to the informality and celerity of 
early proceedings, and the high degree of good order 
secured in every camp, without exception. 

A gentleman, once a pioneer citizen of Marysville, 
before the famous Briggs orchard was planted, or Yuba 
County organized, writes, saying that he was among 
the first of the miners " in quite a number of migrat- 
ing camps which proved evanescent, and disappeared 
with the swift current of events," but "were well 
governed while they lasted." In one case he .and a 
companion " found pay-dirt in a canon which sloped to 
the rushing Yuba," then a clear and beautiful river. 
Here they toiled for several days, and were doing well, 
when, one morning, they were suddenly visited by a 
delegation of miners from a neighboring camp, where 



the report of lucrative discoveries in the new gulch 
had been circulated by men who had climbed the 
hills in search of a stray pack-mule. The visitors, six 
or eight in number, proposed to organize a new camp, 
and share the " find." A consultation was held ; and it 
was decided that each miner should be allowed to own 
and mine a strip of land ten feet wide on the river, 
and three hundred feet deep. Our friend and his com- 
panion were in the minority, and could not have ob- 
jected had they wished ; but the plan was so entirely in 
accordance with the usual custom, the unwritten law 
of older camps, that they yielded a ready and cheer- 
ful acquiescence. In view of the fact that they were 
the discoverers of the mineral wealth of the gulch, it 
was unanimously agreed that they should have first 
choice of ground ; that is, the privilege of abandoning 
the location already made, and of taking up any other 
claim on the gulch. In many districts, they would 
have been allowed two claims apiece in acknowledg- 
ment of their rights as prospectors, but first choice was 
quite as often the rule. In closing his narrative, this 
gentleman says that "there was seldom or never any 
difficulty, because such a spirit of fair play actuated 
the miners of '49." 1 

Another gentleman, a graduate of Yale, 2 says, in the 
course of a highly interesting letter, that he " ought to 
know something about it," for he " began to work at 
mining when there was not even a custom, so that a 
man hardly objected to your digging close beside him 
so long as you left him room to swing a pick." 

1 This pioneer was Mr. William C. Dougherty, now (1884) deputy 
postmaster of San Francisco. He was once sheriff of Yolo, and was 
well known throughout the northern mines. 

2 Mr. C. T. Blake of San Francisco. 


" A little later," he goes on to say, " I was present at a miners' 
meeting near Illinois Town, which was called together simply by 
sending notices through a district four or five miles square. My 
recollection is, that there was nothing done of any importance, as 
there were so many clashing interests that we could decide upon 
nothing which suited everybody concerned." 

The Anglo-Saxon idea of compromise as the basis of 
all political action could not be more clearly shown 
than in the above statement. At a subsequent meeting, 
they doubtless settled upon some scheme that was the 
best that could be done under the circumstances ; that, 
as far as possible, suited everybody. Americans were 
the only class of miners who recognized this principle 
as essential to any harmonious organization. 

Our correspondent, in speaking of the mining-camps 
in which at various times he lived and labored, says 
that they " were mostly of limited size, say a small canon 
and its tributary ravines, or a ridge between two canons, 
or a river-bar." A mining-region of great extent, like 
Georgetown, Placerville, Coloma, or Nevada, "might 
contain numerous districts with entirely different laws. 
The work of mining, and its environment and conditions, 
were so different in different places, that the laws and 
customs of the miners had to vary even in adjoining 
districts." ' Nor were the laws of any district permanent : 
they had to be changed from time to time, as the dis- 
trict came to be "re-worked." This re-working of a 
district increased the size of a claim. With rich virgin 
soil, ten or twenty feet frontage was a large claim ; but 
the same gulch when being worked over for perhaps 
the fifth time, for what predecessors had been unable to 
obtain, was divided up into claims of one or two hun- 
dred feet frontage. The ground worked at first by 
placer-miners with pick and pan, was again sifted and 


searched by rocker and long-torn process ; then, perhaps, 
by ground-sluicing ; and lastly, by various forms of the 
hydraulic process, the entire gulch, where dozens of 
small claims had once existed, passing under one owner- 

" Almost every mining-district," our correspondent writes, " kept 
written records from nearly the beginning, as claims had to be 
registered ; but most of these records have been burned in the in- 
evitable fires which have swept over almost eveiy mining-town in 

( Some of the mining-counties of California, whose 
county-seats are towns that have grown from little 
mining-camps, are unable to show any historical records 
of earlier date than 1851. The lesser and migratory 
camps carried on most of their proceedings without 
any written records or documents of any sort what- 

Notes sent by a California fruit-grower l describe his 
experiences in the mines. The only officer known in his 
camp was a recorder of claims, elected by the miners. 
His duties appear to have been clerical merely : the real 
business of the camp was transacted in open meeting 
by the assembled miners, who tried all criminal cases 
and disputes over claims, choosing a chairman, and vot- 
ing viva voce. He never knew the miners of one 
camp to trespass upon the territory belonging to another 
camp. Difficulties of any sort were extremely rare. 
The camp being in a dry region, entirely dependent 
upon the water-ditches for working the claims, one of 
the district-laws was that all claims left idle a certain 
number of days after mining could be commenced, were 
considered to have been abandoned. Here we have 

i B. D. T. Clough, of Alameda County, California. 


hints of what was afterwards developed into a complete 
and exact system of riparian regulations. 

An account of the organization of Gold Hill Camp 
has been secured through the kindness of a California 
friend, 1 who interviewed an old miner named Morey, 
and questioned him upon various features of interest. 
The camp occupied a gulch and the adjoining hill- 
sides, in the western part of Nevada County, and was 
first prospected by several miners early in 1850, the 
year that witnessed such surprising growth throughout 
all that region. A few hours' labor convinced the dis- 
coverers that the royal metal was there in paying quan- 
tities, and they pitched their tent on the bank. Soon 
the news spread ; and within a week there were fifteen 
or twenty men at work in the low, gravelly bed of the 
creek. At first the camp had no organization or gov- 
ernment, and every man's conduct conformed to his own 
ideas of right and justice. Each miner had chosen a 
spot to work in, and no question of encroachment could 
possibly arise until their widening circle of operations 
began to approach each other. About the close of the 
first week after the establishment of the camp, the near 
approach of two miners' operations caused a dispute 
about the size of claims. One of the miners consid- 
ered his rights infringed upon ; and, a few days later, 
after a good deal of talk, his friends circulated an in- 
formal verbal request through the camp, whose popula- 
tion had by that time increased to fifty or more, asking 
for a miners' meeting in the evening. They all felt 
that sooner or later definite laws must be adopted 
for the government of the camp, or disorder would 
prevail. The single question that had arisen could 

1 Rev. W. F. B. Lynch, of Centreville, Alameda County, Cal. ; former 
county superintendent of schools. 


easily be settled by arbitration, but they must have 
some general rules regarding claims. 

When the miners of the new camp assembled, one 
of their number called the meeting to order, and nomi- 
nated a permanent chairman, who was at once elected. 
The chairman then stated that there had been a little 
trouble about claims, and might easily be more. They 
could no longer let matters take their own course, but 
must make a serious effort to get the camp into shape. 
Its bounds were then established, making it about 
three miles in length, and nearly two miles in width. 
A few regulations were made about the size of claims ; 
some informal talk was indulged in regarding roughs 
and thieves; and the meeting adjourned, to re-assem- 
ble whenever called together by the chairman, who was 
regarded as continued in office, and, in fact, as the head 
of the camp, until such time as a new election took 
place. At subsequent meetings, some further difficul- 
ties about claims were settled by vote ; and the punish- 
ment of several thefts was fixed in the same way. 

This camp never had a recorder or a jury, either of 
six or of twelve. The whole meeting constituted the 
jury; their decisions were final, and their punishments 
immediate in execution. The chairman simply named 
such miners as he thought sufficient to " carry out the 
sentence of this meeting." Every man in the camp 
was liable to be called upon to act as an executive 
officer ; and each law-abiding citizen of the camp was 
a public prosecutor, unless he had been expressly ap- 
pointed to defend the prisoner. Meetings assembled 
whenever an offence had been committed, and disbanded 
as soon as it had been punished. This crude but effi- 
cient law gave general satisfaction until the civil and 
criminal law of the State stepped in to take its place, 


and Gold Hill Canon became a small and lessening 
village in one of the townships of the county. 1 

One of the Nevada-county pioneers writes of the 
beginnings of Rough and Ready Camp. The ravine 
was "located" in 1849 by a company of ten persons, 
who were followed by another similar company; and 
the two parties tried to maintain a monopoly of the 
gulch. One of the leaders went to the Atlantic States, 
and hired men to work for his company; but during 
his absence the influx of miners, who paid no regard 
whatever to the extensive claims of the first settlers, 
swept every thing before it. In September, 1850, there 
were five hundred miners at work in the gulch, and 
they had staked it out from end to end with claims of 
the ordinary size. Yet there was " no trouble, no shoot- 
ing, or difficulty of any sort : " the monopoly scheme 
had failed, and that was the end of it all. Some of 
its members secured claims for themselves, and some 
were compelled to buy interests in claims already taken 
up. /All the* camps of this period rose and fell in 
population with a surprising rapidity.) At Gold Flat 
there were two cabins in August, 1850; in July, 1851, 
over three hundred miners were at work there ; in 1852 
the place was abandoned. Washington Camp, settled 
in 1849, contained a thousand miners within one year ; 
and during the winter of 1850-51, over three thousand 
men were at work in tho immediate vicinity. Moore's 
Flat diggings, within a year from their discovery, grew 
into a camp of five hundred miners ; Orleans Flat, into 
one of six hundred. Grass Valley had fifteen cabins in 

1 The township of California is not like the township of New Eng- 
land. It is much larger, often containing three hundred square miles. 
It only elects road-supervisors and constables, and these only on the 
county ticket, and has a proportionate vote in the county board of 


October, 1850, and a hundred and fifty by March, 1851 : 
four years later, its population was three thousand five 
hundred. In each of these camps, organization kept 
pace with the growth of population ; and there was 
never any serious disorder. 

A pioneer of 1849, who, after many wanderings 
among the camps new and old, has settled down as the 
editor of a Boise City newspaper, 1 lays great stress, in 
his reminiscences, upon the law and order maintained 
with little difficulty in the camps of California. In 
his experience, all persons who attended a meeting 
were allowed to take part in its deliberations, whether 
residents of that particular district or not. If it was 
a criminal case that the court had assembled to con- 
sider, the accused was granted counsel, both sides were 
heard, and a vote was taken. In some instances the 
amount of punishment awarded was excessive, but it 
usually inclined towards mercy's side. In one case, 
in the little Sierra camp in which he dwelt, a meeting 
was held to try an Irishman and a Dutchman on a 
charge of stealing an old shovel and pick from a claim 
where they had been left by the owner to hold posses- 
sion for him ; the rule of the district being that all 
claims were forfeited so soon as the tools were removed. 
They were convicted on the evidence of witnesses who 
saw them carry the tools off. Their plea was, that the 
tools were so old and worthless that they supposed 
no one else wanted them. But the claim, it was an- 
swered, by that act, through no fault of its owners, 
had been thrown open to the next prospector ; and 
therein lay the guilt of the accused, since they were 
fully aware of the law of the camp. They were there- 

i Mr. D. Bacon, editor Boise City (Idaho) Republican. 


fore sentenced to be whipped, and expelled from the 
diggings. One of them received a portion of his lashes, 
but a motion was then made and carried to remit the 
remainder; and the two men were escorted to the 
border of the camp, and told to seek fresh pastures. 
The miners' meeting then gravely and earnestly ad- 
vised the owners of the claim to be careful and leave 
better tools there another time, so that the object of 
so leaving them might be indisputable. 

After giving various regulations about the size of a 
claim, similar in their leading features to those pre- 
viously spoken of, this correspondent says that this 
method avoided endless litigation ; and that the system 
of later years, adopted in the newer Territories such as 
Idaho and Montana, which allows a man to hold twenty 
acres of valuable mineral-ground, to the exclusion of 
all others, has produced bitter fruit. The smaller plots 
of the California miners were much better for the com- 
munity. All were contented, and none were hopelessly 
poor. A group of California prospectors, in those 
early days of which we are writing, seldom attempted 
to determine the superficial extent of the placer, and 
then divide it up among themselves. When they did 
attempt it, the effort always came to grief, as in 
Rough and Ready Camp. They seemed rather to wish 
to ascertain how much surface-ground would give an 
operator a full season's work; they chose the richest 
spots they could find, marked out their small claims, 
and left to later comers the ascertaining of the limits 
of the auriferous deposits of the district. Very often, 
indeed, when a miner had worked out his claim, there 
was plenty of equally good and never-occupied ground 
close at hand. 

But the lesser differences in all these early camps 


were innumerable. An old miner writes me from Chili, 
where he owns a large hacienda on the borders of the 
Araucanian country, and states that a Yuba county 
camp he helped to organize in 1850 did not permit the 
transfer of claims, either by sale or by gift; and dis- 
putes were referred to the oldest man in camp, whose 
decision was final, but was in every case so in accord- 
ance with justice, that it was invariably accepted. An 
old miner whom the writer once met illustrated a similar 
method in vogue in one of his early camps : " When we 
come back to dinner, Bill an' I, two strange fellers was 
at work in our claim. We sat down on the bank, an' 
told them there was plenty of good gravel, jest as good, 
a mile down the river, an' that was our diggin's. They 
didn't stir, so one of us went an' asked Cap'n Bob 
Porter, the best an' quietest man in camp, to come up ; 
an' we all had a drink outen the cap'n's flask, an' then 
we talked it over, he bein' spokesman. Pretty soon they 
said it warn't no use making a row, an' went off very 

This very summer of 1884, the dwellers in a cottage 
on one of the fairest islands of Casco Bay interviewed 
a rugged old sea-captain, a pioneer of the gold period, 
and a kindly, white-haired giant of a type not unlike 
brave John Ridd in "Lorna Doone." He had toiled in 
many different camps, but chiefly in the noisy town of 
Spanish Bar, Placer County, where an elected alcalde 
ruled, and where " every one drinked as much whiskey 
as they wanted." The size of claims in his experience 
varied, but at Spanish Bar it was ten feet square in the 
dry diggings. Tools left on a claim held it for three 
days' absence, and a claim-notice protected it for seven 
days. Claims on the river were one hundred feet in 
length, as a rule ; though sometimes, when a camp was 


crowded, and all the best claims taken up, a new com- 
pany of miners would come along, and, calling a public 
meeting of the miners, persuade them to diminish the 
prescribed size of claims, so as to give all an equal 
chance. Sometimes the first-comers exceeded their 
rightful bounds, but readily yielded when other miners 

This sort of evidence and illustration, afforded by 
letters from pioneers of California, might easily be ex- 
tended beyond the limits of a single chapter ; but we 
must turn to a more definite discussion of the laws of 
the camps, and the varunis systems under which they 
were controlled. The flexibility of the government 
known in the Sierra camps, and the freedom with which 
it assumed different forms, were quite as admirable 
traits as were its earnestness and efficiency. Even in 
the quotations already given, there are hints of differ- 
ent methods of governing camps ; and these must now 
receive consideration. 



As we have seen, the forms of local organization 
under which laws, civil or criminal, were made for the 
governing of mining-districts, were varied and sugges- 
tive ; but they are all reducible to three types, that 
rule of the whole body of freemen, which we have here- 
tofore denominated the "folk-moot of the Sierra;" that 
rule of a select and permanent committee or council to 
whom supreme authority was sometimes delegated ; 
and, lastly, that individual rule of the alcalde, or of 
the miners' justice of the peace, offices of nearly similar 
powers and duties in the eyes of the early gold-seekers. 
Behind the seldom-questioned supremacy of council 
and alcalde, preventing them from unjust, despotic, and 
arbitrary extremes, was the tacit acknowledgment of 
the right of the community to interfere in extreme 
cases. Society ever kept a watchful eye upon its au- 
thorized dispensers of justice. The "folk-moot" was 
the original and central institution. 

This assemblage of the people, called together by 
any person or persons, after choosing a temporary offi- 
cer, proceeded to discuss subjects of interest, try cases, 
make laws, and enforce them. It was literally govern- 
ment by the miners of the district. Boys of fifteen and 
sixteen, broad-shouldered and self-reliant, often took 



part in the deliberations of the meeting. It was this 
miners' court, that our Norse and Saxon ancestors, 
could they have risen from burial-mounds like Beowulf's 
" on the steep, seen by sea-goers from afar," reared there 
by the "battle-brave hearth-companions" of the dead, 
would undoubtedly have recognized as akin to those 
folk-moots held of old in primeval German and Scan- 
dinavian forests. In both alike were the right of free 
speech for all freemen, the right of unhampered discus- 
sion, the visible earnestness, the solemn judgment, not 
only in the name of the people, but by the people 
themselves, assembled to right wrong, to try offenders, 
to smite even to death, or to justify and set free. Out 
of this meeting, containing such possibilities for good 
and for evil, other forms of government known to the 
miners developed, or in this meeting were of their own 
free will adopted. No alcalde, no council, no justice 
of the peace, was ever forced upon a district by an out- 
side power. The district was the unit of political or- 
ganization, in many regions, long after the creation of 
the State ; and delegates from adjoining districts often 
met in consultation regarding boundaries, or matters 
of local government, and reported to their respective 
constituencies in open-air meeting, on hillside or river- 

In all cases of criminal trials, the miners' court as- 
sumed much of a judicial aspect. Whatever legal talent 
the miners possessed was brought into service. In 1849 
hardly a camp existed on the great Sierra slope, that 
did not contain miners who were graduates of colleges 
and law-schools, or were lawyers of considerable expe- 
rience. Many of these men, in after-years, became 
leaders in county and State affairs. Earnest, intelli- 
gent, and cultivated speakers stood ready to defend the 


accused. When acting as tribunals of life and death, 
all who appeared were entitled to a vote, and to be 
heard ; but when deciding laws concerning claims and 
local government, members of other camps could not 
vote. The accused camp-thief, sluice-robber, horse- 
stealer, or murderer was guarded by men with re- 
volvers, or was tied to a tree. The miners' court was 
in such cases assembled at once, not by formal notices, 
but by a cry running from claim to claim, from height 
to height, proclaiming, for instance, that "they've 
caught the fellow that robbed John Smiley 's sluice- 
boxes last night." Nearly every one then came into 
camp, and the case was usually brought to trial within 
half an hour. 

Short speeches were made for and against the pris- 
oner ; the presiding officer charged the jury " to do the 
fair thing accordin' to common-sense ; " and after a brief 
deliberation they rendered a verdict, and the presiding 
officer decided the penalty. If there was no jury, the 
case was submitted to the decision of the miners pres- 
ent, who also fixed the punishment. In small camps, 
where only thirty or forty men assembled, this was 
perhaps the usual system ; but in larger camps, the jury- 
system prevailed. In one case, a trial was had, and the 
prisoner hung within an hour ; it being a cold-blooded 
murder, with a dozen witnesses to the act. In another 
case, the jury spent four days in taking testimony and 
listening to arguments. When it was decided to hang 
the prisoner, the crowd guarded the town and the build- 
ing where he was confined, having reason to fear an at- 
tempted rescue ; they gave him four days to prepare for 
death, and then, on the ninth day after his arrest, hung 
him to a bridge in the presence of more than two thou- 
sand men, with all the dignity and solemnity imaginable. 


Capital punishment was not, in the miners' code, con- 
fined to murder: it was often inflicted upon those 
guilty of lesser crimes. Thus the roads were made safe, 
the cabins of the lonely miners secure ; as in the days 
of good Duke Robert, " gold bracelets might hang un- 
touched from an oak by the public highway." Horse- 
stealing was sometimes considered a capital offence; 
partly because of the great value and scarcity of horses 
in the mines, partly from the fact that a desperado once 
mounted was infinitely more dangerous than before to 
society. The entire absence of jails and prisons in 
which to confine criminals reduced available penalties 
to three, banishment, whipping, and death. In prac- 
tice the punishment awarded for theft was whipping 
for the first offence ; but if repeated, it was at the peril 
of the offender's neck. The cases in which men were 
hung for theft were justified by the miners under the 
plea of necessity ; the lawless classes being sometimes 
strong and defiant, only checked by the stern deter- 
mination of Americans to protect their property from 
claim-jumpers and thieves. 

Cases of whipping were very numerous. A man 
who stole a sack of flour, just after the Nevada City 
fire of 1851, was given twelve lashes. In 1850, in Grass 
Valley, a mule-thief received thirty lashes. In Trinity 
County, at Hay Fork, the first thief was whipped by 
the entire camp, each miner giving a blow. Hardly a 
camp existed in the mining-region, where, sooner or 
later, the assembled court did not decree this form of 
punishment to some offender. In one case, a man who 
entered the tent of a Chileno woman one night during 
her husband's absence, and attempted violence, was 
whipped so severely that he was hardly able to drag 
himself out of the camp he had disgraced. A store- 


keeper was once whipped for swindling the miners out 
of their gold-dust by false balances. In Calaveras 
County, a man stole a small amount of dust, received 
ten lashes ; returned that night, and committed another 
theft ; was given twenty lashes, and sent out of camp. 
He went to the next camp, and there stole a mule on 
which to leave the country ; but the miners of this 
camp caught him, and the court sentenced him to fifty 
lashes well laid on. When stripped, however, his con- 
dition from previous punishments appeared so dreadful 
that a vote of forgiveness was passed ; and the owner 
of the mule took the culprit to his tent, and dressed the 
bleeding wounds. 

The miners' court was never wittingly cruel in its 
judgments, but it was liable to be swayed by prejudice 
or passion. The change to a committee or council form 
of government, which occurred in quite a large number 
of cases, was a decided improvement. The best ex- 
ample of this type occurred at Rough and Ready Camp, 
Nevada County, early in 1850, after the State govern- 
ment had been organized, but while three-fourths of 
the mining-region still depended upon miners' courts. 
This camp, established late in 1849, had a population 
of several hundred persons. They held a mass-meeting, 
and elected a committee of three persons to administer 
justice. The miners then went about their business, 
and left the management of the affairs of this thriving 
camp entirely in the hands of these three citizens. 
There was no higher court ; and their authority was 
nearly absolute, and always well sustained. 

Before this council, a man who was accused of steal- 
ing was tried with the forms of law, was found guilty, 
and was given thirty-nine lashes, after which he was 
banished, and warned never again to appear in that 


camp. The three members of the council had equal 
powers, and all voted in such cases. Presumably a 
majority ruled. In quite a number of cases, the punish- 
ment given to offenders was " forty stripes save one." 

The council had civil jurisdiction, as well as criminal. 
They settled quite a number of disputes about claims ; 
they laid out the streets of the town, and apportioned 
the town-lots among its citizens ; they even appointed 
a constable, issued writs as occasion demanded, and 
accepted bail-bonds for the appearance of accused per- 
sons. One of these bonds is still in existence, and 
shows that a person charged with horse-stealing offered 
bail to the amount of one thousand dollars, and after- 
wards came forward and stood his trial. 

The nearest fully established court of justice was at 
Nye's Landing, afterwards Marysville, over thirty miles 
distant, where a justice of the peace had been elected 
under the State laws. Nevada City had an alcalde, 
but he exercised no jurisdiction outside of that district. 
The Grass-valley miners met in November, 1850, under 
a large oak-tree, and elected by ballot a justice of the 
peace, and constable. But Rough and Ready district 
was satisfied with its council, which accordingly de- 
cided all disputes, administered justice with an equita- 
ble hand, and in all respects made their management of 
camp affairs so satisfactory that it lasted until the juris- 
diction of the county was fully established. 1 

This sort of government by a committee, or council, 
to whom all powers are intrusted, re-appears in Tuo- 
lumne, Placer, and Shasta counties. The influence of 
the idea is, perhaps, manifest in the adoption in many 

1 Rough and Ready was then in Yuba County's jurisdiction. H. Q. 
Roberts, James S. Dunleavy, and Einaimel Smith formed this Com- 
mittee of Vigilance and Safety. 


camps, almost simultaneously, of the principle of arbi- 
tration, according to which permanent officers were 
chosen, and given the duty of acting as arbitrators 
whenever called upon. In some camps, as late as 1 854, 
all disputed claims were referred to a standing commit- 
tee ; and the laws of many districts, as will be shown 
hereafter, contain traces of this principle. No case of 
the miners' court interfering with, or revising the action 
of, such a committee, seems known to record or to 

The third, and historically the most interesting form 
of camp-government, was by means of an alcalde, that 
Spanish-American official of time-honored authority and 
dignity. It seems to have given satisfaction wherever 
adopted ; as the camps which in 1848 organized under 
that form made no change until their incorporation as 
towns under a city council, or their subjection to the 
general county system. The duties, powers, and many- 
sidedness of the office in its typical development have 
already been described. 

Removal of the office from the immediate control of 
the military governors of California to places far in the 
interior, and difficult of access, had practically emanci- 
pated it from all superior authority. We have already 
seen what close supervision the alcaldes of the coast- 
towns received under Kearney and Mason, and what 
jurisdiction General Riley claimed and exercised; but 
over the alcaldes of the mining-region, there is no evi- 
dence that the control elsewhere exercised by the de 
facto governor of California was ever felt or acknowl- 
edged. 1 The miners were not in the habit of writing 

1 The California Documents containing the official correspondence 
of Kearney, Mason, and Riley, at various times during 1847, 1S4.S, and 
1849, to various officers, are crowded with letters to alcaldes iu coast- 


letters of inquiry when difficult cases were brought 
before them, or of waiting for weeks till, by slow and 
uncertain methods of communication, advice was re- 
ceived from Monterey. Even when the Constitutional 
Convention was called, it proved impossible for more 
than half the miners to vote ; again, when the question 
of adopting the constitution was submitted to the peo- 
ple, the same difficulty occurred. Even a tax-gatherer 
could not keep the run of the new camps. Each little 
district in the Sierra was a body politic by itself, con- 
scious of no outside control ; its alcalde seldom paid 
any attention to the doings of his neighbor alcaldes, nor 
conformed his rulings to the strict letter of Mexican 
alcalde-law, nor, indeed, to the letter of any law what- 

The typical plan by which a single officer was elected, 
and clothed with full alcalde powers, was often modi- 
fied. It sometimes happened, that, at the very first 
miners' meeting of the district, a sheriff was chosen 
to aid the alcalde; and a recorder to register mining- 
claims, sometimes to act as clerk of the alcalde-court. 
A camp provided for in this lavish manner was consid- 
ered to have given proof of its permanence to all the 
world. The chairman of the meeting administered an 
official oath to the newly elected officers, who were at 
once installed. The alcalde issued writs and summons 
according to forms copied from the nearest available 
law-book, or evolved from his own inner consciousness 
and sense of fitness, and often expressed in untechnical 
even ungrammatical language; the sheriff served 

towns. But no letters were written to, or received from, any alcaldes 
east of the Sacramento and San Joaquin Rivers ; nor were any removals, 
appointments, or changes made east of those rivers. Even when Mason 
and Riley visited, in 1848 and 1849, the camps, there were no appeals 
made to them : the miners had already organized. 


these writs and summons, made arrests, preserved order, 
and saw that prescribed punishments were duly inflicted. 

The compensation allowed to these officers varied. 
The alcalde usually received about sixteen dollars for 
trial of a cause. The sheriff had pay for serving writs, 
and mileage for all travel performed in the discharge 
of his duties. Jurors received six dollars apiece for 
each case tried, and witnesses were paid their actual 

Funds for these and other necessary expenses were 
secured by the system of registering claims. The fees 
for this were from fifty cents to one dollar for each re- 
gistry, of which the recorder received a percentage ; and 
miners were so restless, so constantly taking up new 
claims and abandoning their old ones to others, that 
even small camps were kept in funds for all necessary 
judicial expenditures. There was no waste whatever. 
Every dollar, except the recorder's small percentage, was 
used for legitimate expenses. A camp that charged no 
fees for recording claims had two financial resources, 
one, and the most frequent, by means of a collection ; 
the other, by a direct assessment upon the claims. Thus 
we see that the miners had solved the problem of obtain- 
ing financial support to their courts of justice, and, in 
full accordance with the socialistic features of their 
system, fcad made taxation equal. The amount to be 
raised was small : no miner felt the payment of a dollar 
when he registered a new claim. No tax-collectors were 
needed, for the fact that unregistered claims were liable 
to be "jumped" in short metre was a sufficient incen- 
tive. The district thus provided for was a self-governed, 
independent, and self-supporting state in miniature. 

The jury for civil cases was usually composed of six 
persons, perhaps from questions of economy ; in criini- 


nal cases, it was always twelve. The alcalde's decision, 
it need hardly be said, was final. 

In many cases, a camp was long governed by occa- 
sional miners' courts, and did not adopt the alcalde 
system until nearly the full organization of State and 
county courts. Thus, in March, 1850, "the need of 
more authority was felt at Caldwell's Upper Store ; " 
and a man named Stamps was by ballot elected alcalde, 
two hundred and fifty votes being cast. At the same 
miners' meeting, the name of the camp was changed 
to " Nevada City." Only two months later the county 
officers at Marysville ordered an election for justice of 
the peace to supersede the alcalde, so his reign was a 
brief one. 1 The evidence of Governor Riley, as noted 
in a previous extract from his report of a visit in 1849 to 
the Tuolumne camps ; also the evidence of Mr. Bayard 
Taylor, who describes alcalde rule as "nearly universal 
in the Butte-county region," is sufficient to show the 
extent to which the system was adopted. It suited the 
demands of the mining-community ; being simple, effi- 
cient, thoroughly representative, and always responsible 
to the people. 

Stories of curious alcalde decisions are numerous in 
the mining-region, and some of them are extremely 

In Columbia district, Tuolumne County, the first case 
brought before the alcalde was an American miner's 
complaint against a Mexican for stealing a pair of old 
leather leggings. That official, himself an American, 
remonstrated; but, justice being demanded, he fined 
the Mexican three ounces (about fifty dollars) for the 
theft, and the miner one ounce for making a complaint 

1 Thompson and West's History of Nevada County; chapters on 
Early Courts, aud on Nevada City. 


over such a trifle. The second case in this court was 
a miner's suit against a neighbor, for a pick stolen from 
his claim. Judgment for plaintiff, for value of pick, one 
ounce ; and costs, three ounces. 

In 1849 an El Dorado alcalde had a case of trespass 
on mining-ground brought before him, and settled it to 
the satisfaction of both parties. The district treasury 
was nearly empty. Turning to the astonished sheriff, 
the alcalde ordered him to pay the costs, since the tres- 
passing miner was poor, and had infringed unwittingly 
upon his neighbor's rights, while the mulcted officer 
owned the best claim on the gulch. " If you don't do 
it, the boys will have to take up a collection." Protests 
were ineffectual, and the sheriff paid the costs. 

In one of the Calaveras camps of 1849, a sailor de- 
serter, too lazy to work, stole several thousand dollars 
in dust and coin from under a miner's pillow, was cap- 
tured, left tied to a tree the rest of the night, and in 
the morning given a jury -trial, and found guilty. The 
alcalde sentenced him to one hundred lashes well laid 
on, though the crowd wanted him hung as an example 
and warning. All the miners favored stringent and 
rigidly enforced laws against theft. A law permitting 
capital punishment for theft remained for a few months 
on the State statute-book. 

One more story of early alcalde methods will suffice. 
It was in one of the northern mines ; and the alcalde 
had a slow, oracular delivery, and a mild, gentle, per- 
suasive manner. To him one day a well-dressed young 
man who had stolen a purse, and tried to escape on 
horseback, was brought for punishment; the evidence 
being so clear, that after five minutes' listening to the 
testimony, the alcalde said in his most seductive ac- 


" Would you like to have a jury-trial, my son ? " 

" No, judge : it isn't worth while to do that." 

" All right, my son. Now you must return the dust 
you stole." 

" Certainly, judge." 

" And the court regrets the necessity, but really, my 
son, you ought to pay costs, two ounces." 

" Oh, I can stand that : here it is, and thank ye, 

" Now the court is fully satisfied, with the exception 
of one trifling formality. Boys, take him out, and give 
him thirty-nine lashes well laid on." 

We must remember that all the various forms of 
camp-government existed in one place or another, at 
the same time; that the older and more prosperous 
camps were assuming the appearance of towns, and 
perhaps had a town-council, sheriff, and recorder, be- 
sides the alcalde ; while the newer camps were in the 
first stages of growth. Nevada camps of 1849 were in 
somewhat the condition of El Dorado camps of 1848 ; 
Trinity-county camps of 1851 were ruled as simply and 
directly as were those of Nevada in 1849. For months 
after the State judicial system was adopted and estab- 
lished at the various county-seats, the remote camps 
saw only the tax-collector, and continued to govern 
themselves by their favorite local methods. Long after 
Sonora Camp had organized a town government, and 
elected a council and mayor, though without State 
authority, there were hundreds of small camps where 
no officer except the chairman of the miners' court 
had ever been known. The primitive folk-moot reigned 
supreme in these temporary camps. \ A chronological 
study of the life of various camps is impossible.! Some 
were blossoming, others decaying; some began under 


committee-rule, others with one-man power. But none, 
after electing an alcalde, chose to abandon the system 
and return to primitive methods ; although in more cases 
than one they asserted the right of the camp to sit in 
judgment on the actions of their elected ruler. 

Brief though the reign of the^ mining-camp alcaldes 
was, it left a deep impress upon mountain society ; as 
an occurrence in northern California a few years ago 
will perhaps illustrate. There is a school-teacher there, 
a man of mighty frame and great energy, whose boy- 
hood was spent in the placers of Siskiyou, and his 
young manhood on the cattle-ranges of eastern Oregon, 
and in adventurous wanderings along the frontiers of 
British Columbia. When the late war began, he went 
East, and joined a regiment; returning to his mountain 
wilderness in 1865, a crippled and battered veteran. 
He had always been a close reader and hard student : 
so, as a teacher, he soon won a reputation for success 
over three counties. Under these circumstances he was 
called to take charge of what, with undoubted justice, 
was called one of the worst schools in northern Cali- 
fornia. The mail-rider threw off the trustee's letter at 
the door of this man's summer cabin, perched on a pine- 
clad height of the Sierra ; trout-stream within a stone's 
throw ; grouse, deer, and bear in the woods ; his gun and 
rod in the corner, his " Marcus Aurelius " and " Noctes 
Ambrosiana " on a rustic shelf. He saddled his horse 
the next morning, and reached the village, once a min- 
ing-camp, before nine o'clock. When school was called 
to order, he found that efficient work demanded a re- 
classification ; because the previous teacher had tried to 
gain cheap favor by advancing grades without reason, 
and skipping the hard places. After a few weeks he 
had come to grief by trying to persuade a large boy 


not to smoke a cigarette in school-hours ; for the play- 
ful innocents had ducked him in the adjacent stream, 
sousing him up and down until he escaped, waded to 
the farther bank, and sought other fields for his peda- 
gogic prowess. But the new teacher possessed fron- 
tier freedom of resource, and military discipline of 

44 1 must turn you back in your grades," he said, after 
several hours of examination. An ominous murmur 
of rebellion followed. Several boys rose in their seats, 
and announced that their parents "would see about 

The teacher then made his first and last speech to 
the excited school. He took a book from the table, and 
addressed the most noisy of the rebels. 

" Do you know what this is ? " 

" Yes, sir, the school-law." 

" And it defines the grades ; and you think that last 
year you passed an examination, and that I cannot go 
behind the law ? " 

" Yes, sir." 

"Very well, you are quite mistaken. I am the al- 
calde of this school. I am sheriff, and register of 
claims, and judge of the camp, and the whole jury. I 
am absolute finality here ! " With this comprehensive 
statement, he threw the school-law out of the open win- 
dow, and then, in the midst of an awe-struck throng, 
proceeded to break up and consolidate class after class. 

" Yes, an alcalde was what the district needed," was 
the opinion of the old pioneers of the village when the 
story was told; and a better school, for the rest* of 
the year, northern California never knew. 



WE have said that in the mines there always was a 
tacit recognition of the power vested in the people of 
the camp to depose an alcalde from his high office. 
One of the best known instances of the exercise of this 
power occurred in the southern Oregon mines, as late 
as the autumn of 1852; and its history throws more 
light upon the ideas of justice and law which underlie 
these frontier courts, than could be obtained by pages 
of barren generalization. 1 

It is not our purpose to describe the beginnings of 
local government in Oregon, the famous " Wolf Meet- 
ing " of the settlers of the beautiful Willamette Valley 
in 1843, and those earlier local organizations in that 
region in 1838 and 1839, which preceded and made pos- 
sible that notable assembly. The Spanish-American 
and gold-seeker elements were entirely foreign to the 
struggle that organized Oregon under a legislative com- 
mittee and supreme judge, while the ownership of her 
territory was as yet undetermined. That interesting 
struggle of Americans to gain control in the north-west 
must be studied elsewhere. 2 

f The points for this chapter are obtained from an article, " Pioneer 
Justice in Oregon," Overland Monthly, first series, vol. xii. p. 226, and 
from letters of correspondents. 

2 Oregon: Barrows; American Commonwealth Series, p. 265. Mrs. 
Victor's articles on Early Oregon, Overland Monthly, first series. Gray, 
W. H., History of Oregon. Overland Monthly, November, 1884, p. 555. 


But in south-western Oregon there were placer-mines; 
and to these narrow gulches, clad with spruce and fir, 
California miners went, bearing with them the organiza- 
tion perfected through fierce struggles and dire neces- 
sity in the camps of 1848 and 1849. They governed 
their Oregonian camps on the plans adopted in Siskiyou 
and Shasta, in Amador and Fresno, in Tuolumne and 
Nevada. North of the Calapooia Mountains, the pioneer 
Oregonians were, and always remained, totally unac- 
quainted with that famous Spanish office, the sflcalde- 
ship: south of those mountains, there were several 
alcaldes chosen by the settlers, and given the extensive 
powers of the office as known in California camps. 
Before January, 1852, there were no county organiza- 
tions in the south-western fourth of Oregon, and for 
a year later the alcaldes continued to rule supreme in 
that region. Returned Oregonians, who had determined 
to prospect nearer home after one or two seasons in 
California, were influential forces in all the earlier Ore- 
gon camps. 

The miners of Jackson-creek Camp, Rogue-river Val- 
ley, had an alcalde named Rogers. He was not at all 
popular, but was thought to be honest and capable 
until events showed him in an unexpected light. His 
election had occurred before the camp had " boomed : " 
the few early miners on the creek had chosen him, and 
the crowds that came later had accepted his authority. 

It happened that there were two mining-partners, 
named Sim and Sprenger, who worked a claim together, 
and were unnoticed and unknown in the mass of busy 
workers till a sudden difficulty brought them into 

Sim took money from the funds of the concern, and 
went to Portland to lay in their winter's stock of pro- 


visions. During his absence his partner, Sprenger, met 
with an accident, and was crippled, helpless, and sick 
in the cabin, nursed by a few sympathizing friends, 
when Sim returned. The real nature of Sim revealed 
itself: without any compunctions he at once ejected 
Sprenger from their cabin and their claim. Of what 
use was a sick and crippled partner ? 

The wronged and unfortunate miner secured the ser- 
vices of a young man named Kinney as his lawyer, and 
took his complaint to Alcalde Rogers. But Sim, as 
events proved, had forestalled him by arguments of an- 
other sort : putting little trust in his claim of a verbal 
sale, and his extremely doubtful witnesses, he bribed 
the unworthy alcalde, who, disregarding local custom, 
mining-law, and the plain dictates of reason and justice, 
rendered his verdict against Sprenger. The plaintiff, 
in sad destitution and misery, and urged as a forlorn- 
hope by some of his friends, begged the alcalde for a 
re-hearing of the case, which was promptly refused : a 
judge could not be expected to overrule his own de- 
cisions. Nor would he grant a jury-trial. Restitution, 
and re-instatement in his possession of one undivided 
half of cabin, tools, provisions, and claim, appeared un- 
attainable for poor Sprenger. 

The story was told throughout the camp, and it was 
openly said that there had been bribery of the wit- 
nesses, perhaps of the alcalde ; but the camp, though 
populous, was a scattered settlement, and concerted 
action was difficult. There was indignant talk, but the 
men and the hour had not yet arrived. Sprenger found 
shelter in a friendly cabin, and Sim began to look about 
for an able-bodied partner who wanted to "buy in." 
But no one desired the situation of partner to such a 


Matters were in this condition when Sprenger, still 
brooding over his wrongs, still urged by sympathizing 
friends, heard that a miner in the camp, named Prim, 
was a first-rate lawyer, a graduate of some law-school, 
and an attorney of considerable experience. Hoping 
against hope that some new mode of procedure might 
yet be devised, Sprenger hobbled to Prim's claim, and 
begged for his assistance. At first this was denied ; and 
Prim even said he was no lawyer, and could not leave 
his work. But Sprenger's penniless and piteous condi- 
tion became an appeal that could not be disregarded : 
the miner threw down his tools, hunted up Sprenger's 
former attorney Kinney, and they held a conference. 

Further appeal to the alcalde was clearly useless. 
But Prim proposed to reach the territorial courts north 
of the Calapooia Mountains, to go, in fact, to Portland 
itself, and there obtain powers to organize a district 
court with appellate powers over the entire region. 
There was constant need, he argued, for a more com- 
plete scientific system. They could not continue the 
unbalanced, uncontrolled, irresponsible alcalde system 
without a higher court to check its abuses. The practi- 
cal difficulty in the way was, that all this would take 
months, and their unfortunate client would probably 
starve long before the close of the approaching wfeer. 
Then, too, the value of the interest he owned in the 
claim from which he had been ousted was steadily di- 
minishing, as Sim worked there from daylight to dark. 
And if Sim should succeed in finding a partner, a new 
element of difficulty would be added. 

At last Kinney is. reported to have exclaimed, "Who 
but the people made the damned scoundrel alcalde, any- 
how ? We can organize our own court of appeals." 

Prim caught eagerly at the idea. They sent a man 


up and down the gulches, and over the ridges, to the 
extreme limits of the district within Alcalde Rogers's 
jurisdiction. It took a day of hard travel to summon 
them all, but nearly every one heeded the appeal to 
his sense of justice. There was no attempt to pre- 
judge the case, or to bias men's opinions. Each miner 
was told that numbers of persons thought a great 
wrong had been done, and that it was desired to exam- 
ine the entire subject with all fairness and deliberation, 
sustaining or reversing the former judgment as the evi- 
dence should warrant. 

So the eventful morning dawned ; and over a thou- 
sand miners threw down their picks and shovels, left 
their rockers, long-toms, and sluices, and came hasten- 
ing to the main camp. Every man of them all suffered 
a loss, by his day's idleness, of whatever his work that 
day would have earned, perhaps five dollars, perhaps 
fifty dollars; but the miners of Jackson Creek were 
willing to suffer loss if justice, as between man and 
man, could thereby be established. 

The court met in the open air, and chose a presiding 
officer. They then elected a committee of three well- 
known miners to wait on Alcalde Rogers, and respect- 
fullv request him, " in the name and by the authority 
of me citizens of Jackson-creek Camp," to re-open his 
court, and give the case of Sim vs. Sprenger a new 
trial : they asked also that a jury be allowed. Rogers 
refused point-blank, and retired grimly defiant to the 
intrenchments of his log-cabin. The committee re- 
turned, and made a report in open meeting. It was 
then discharged, and the first act of the drama had 

Only one course was left for the miners' meeting, 
to organize their higher court, and invest it with full 


authority to review any and all proceedings of the 
court below. This seems to have been done by these 
bold reformers on the supposition that it might have to 
be a permanent thing : it was not merely an expedient 
by which to re-instate Sprenger*in his rights, if such 
rights a fair trial proved him to possess. It had dawned 
upon the minds of those earnest men assembled in that 
winding Oregonian ravine, that the time had come for 
a higher judicial organization. With strong good 
sense and sturdy independence, they grappled with the 

First, a miner named Hayden, one of the most re- 
spected and intelligent men in the entire community, 
was nominated and elected to serve as chief judge of 
the district. He declined the responsible position, beg- 
ging them to choose some one else ; but the duties of 
the office were urged upon him until he was forced to 

Judge Hayden displayed the greatest promptitude, 
dignity, and good sense in his proceedings. He at 
once asked for a sheriff and a clerk, who were immedi- 
ately elected, and reported themselves ready for duty. 
Within an hour after Hayden's acceptance, a writ of 
certiorari commanding Alcalde Rogers to appear in the 
new and duly established court, before Judge Hayden, 
and submit the records of his proceedings, was served 
upon that officer by the newly installed sheriff of Jack- 
son Creek. To the surprise of all concerned, the stub- 
born alcalde refused to yield, and proceeded to impugn 
the motives of certain leaders, and deny the legal exist- 
ence of the court. History has failed to keep an exact 
record of his language; but, beyond a doubt, it was 
profanely belligerent. 

The crowd of miners were by this time tired and 


angry. It was suggested to batter down Rogers's 
cabin, take possession of his records, and lay them 
before the newly chosen superior judge. But to this 
Judge Hay den objected, as defeating the ends of jus- 
tice. He called the sheriff, and issued new writs, order- 
ing both parties in the original controversy to appear 
before him at once for a trial : in other words, he ignored 
all former proceedings, and asserted original as well as 
appellate jurisdiction over the camp. The impressive- 
ness of the scene had now become indescribable. Those 
hundreds of brawny, bare-armed, red-shirted men, 
grouped in the open air, under giant oaks, were moving 
without noise or excitement to the full accomplishment 
of their appointed task. 

Plaintiff and defendant came before the new court, 
and were assured of a full and fair trial. Witnesses 
were summoned ; a jury impanelled, sworn to do their 
duty ; and lawyers appointed for each side. Tradition 
reports that Sim's lawyer was able and courageous, but 
that his witnesses weakened under the severe cross- 
questioning of his opponent. Both lawyers made ap- 
peals to the jury, and the case was submitted. No one 
can doubt, from the dignity and earnestness which had 
hitherto prevailed, that a verdict for the defendant, 
though contrary to the general expectation, would have 
been accepted by the assemblage. By the verdict of 
that jury, those freemen who had left their claims lying 
idle for miles were tacitly pledged to abide ; and Prim, 
Kinney, and Hay den would have been the first to ac- 
quiesce, the last to propose any " new deal." 

The court, in his charge to the jury, said that they 
must strip the case of technicalities, regarding no law 
but right and wrong, no test but common-sense. They 
listened with approval, and at once proceeded to dis- 


agree on a vital point : some wanted to hang Sim, who 
had been proved guilty of bribery ; several wanted to 
hang Alcalde Rogers. This dangerous phase soon passed 
away; the jury found a verdict for the plaintiff, and 
left the sentence with the court, where it evidently be- 
longed. Judge Hayden then, amid breathless silence, 
announced his decision : Sprenger was to be re-instated 
in all his former rights, as half owner of cabin, tools, 
provisions, and claim ; Sim was also ordered to pay 
the costs of his partner's sickness. The court then 

But some of the evidence offered had revealed so 
much rascality and malfeasance on the part of Alcalde 
Rogers, that none of the miners were satisfied to let 
him longer hold the office he had so disgraced. Who 
could any more put confidence in so untrustworthy an 
official? How could a thousand men, some of them 
living five miles from the central camp, be expected 
to leave their claims, and administer justice by newly or- 
ganized courts each time there was need thereof? The 
crowd proceeded to Rogers's cabin, growing angrier and 
more tumultuous each moment. A cry that he should 
be hung swelled like a mountain torrent in time of 
flood; but Hayden, Prim, Kinney, and Jacobs (who 
had been Sim's lawyer), made speeches, and reason 
again prevailed. One thing, however, was certain, 
Alcalde Rogers must resign ; and this he did without 
demur. Judge Hayden's court was then re-assembled, 
and it levied an instant execution upon some mining- 
property which ex-Alcalde Rogers had illegally and 
unjustly obtained; it being part of the Sim-Sprenger 
claim, given to him by Sim as a retainer at the time 
of the first trial. 

The Hayden court lasted until county organization, a 


few months later, but no other case of any importance 
was brought before it. The lesson taught by the sight 
of those assembled pioneers had proved sufficient. 

The typical nature of this remarkable case is best 
shown by the facts that Sim's lawyer, Mr. Jacobs, has 
since become chief justice of Washington Territory; that 
Mr. Prim has been chief justice of Oregon ; that Judge 
Hayden for many years has been one of the leading 
citizens of southern Oregon ; that the full records of 
the case are on file in the archives of Jackson County, 
Oregon ; and that variants of the story can be heard in 
mining-camps hundreds of miles from Jackson Creek. 
Years ago, in Douglas-city Camp, Trinity County, Cal., 
the writer first heard of "Judge Hayden's appellate 
court : " to-day, perhaps, the story is told in the Koote- 
enay passes, and under the Uintah pines. 

In points of interest and importance, this case is only 
surpassed by the equally famous Scotch Bar case of the 
Siskiyou mines. But at Scotch Bar the problem was 
of a different nature, and cannot be considered in this 
connection : we must first return to the California camps 
of the early gold-era, and discuss a curious institutional 
link between the alcalde of full and unlimited powers, 
and the ordinary justice of the peace of ten years 



THE most important officer the miners had under the 
early State and county organization was a justice of 
the peace, on whom, in practice, partial alcalde powers 
were bestowed in a number of cases. 

The State law of 1850 ordered the election of justices 
of the peace in every township, and abolished the office 
of alcalde. The length of term was fixed at one year ; 
jurisdiction to extend over the township, often as large 
as the average county of an Atlantic seaboard State. 
The justice had cognizance of action to recover damages, 
or specific property of not more than two hundred dol- 
lars in value. 

In 1851 the powers of this office were greatly en- 
larged. The justice of the peace was given authority 
to try all civil cases when the amount involved did not 
exceed five hundred dollars, all cases of forcible entry 
and detainer, and all disputes over mining-claims and 
cases involving mining-properties, whatever their value. 
It was this last clause which made the miners' justice of 
the peace a much more powerful potentate in 1850-52 
than was his brother of the valley townships. His 
criminal jurisdiction included all cases punishable by a 
fine of not more than five hundred dollars, or not more 
than a year's imprisonment. 

Hon. A. A. Sargent, in his valuable " Sketch of the 
Nevada-county Bar," says, 



" The jurisdiction of justices of the peace in 1850-51, who were 
then the only judicial officers known in these diggings, was a little 
shadowy, or very substantial, as the reader pleases." 

Some examples are given by Mr. Sargent. In 1851, 
in Rough and Ready, just after the famous council re- 
tired to private life, a case which involved possession of 
a mining-claim on Lander's Bar a claim worth fully 
one hundred thousand dollars was tried before Justice 
Roberts. Among the counsel was Mr. Lorenzo Sawyer, 
now on the supreme bench of California. The trial 
lasted three days, and the jury disagreed. A new trial 
was commenced on the following day, which lasted ten 
days, and was one of the most closely contested legal 
struggles of the period. Able and brilliant lawyers 
fought the ground over, inch by inch, and exhausted 
every resource of the profession. This trial resulted in 
a verdict, and the losers paid a bill of costs amounting 
to nineteen hundred and ninety-two dollars in gold- 

In September, 1850, one of the "coyote-hole claims," 
near Nevada City, was owned by several Frenchmen, 
and is said to have paid as high as nine hundred and 
twelve dollars to the pan. 1 Several Americans coveted 
the mine, and so demanded to see the owners' foreign- 
tax receipts. The Frenchmen had none less than two 
months old, but were ready to pay whenever the col- 
lector appeared. The Americans drove them off, took 
possession, and began work. Suit to recover was brought 
before the justice of the peace. The case went to a jury, 
and the chief plea of the Americans was that "they 
wanted a slice." Of course the verdict was against 
them; a sheriff's posse at once re-instated the true 

1 "Coyote claims," small holes on the hillside to reach rich gravel, 
which is carried to the nearest stream, and washed out. 


owners, and the claim- jumpers were warned against 
repeating such exploits. 

Quite a number of cases are on record where a justice 
of the peace issued writs of injunction to restrain par- 
ties from working valuable mines until their true owner- 
ship could be decided. In one case, this injunction was 
made perpetual. 

The justices were not always fit men to hold office. 
A miner near Placerville was once on trial before a 
justice for assaulting a claim-jumper. The story is ad- 
mirably told in Parsons's Life of Marshall. The trial 
began at eleven P.M. ; and the justice kindly adjourned 
the court every few minutes, so that prisoner, prosecutor, 
jury, witnesses, officers of the court, and spectators 
could fraternize at the bar of the neighboring saloon. 
When morning came, "a drunken lawyer addressed a 
drunken jury, on behalf of a drunken prosecutor , and, 
a drunken judge having delivered an inebriated charge, 
a fuddled verdict of acquittal was rendered." 

At Nevada City, in 1852, a thief was sentenced by 
the justice, to receive twenty lashes : so he was tied to 
a pine-tree, and given his punishment before the court 
adjourned. Stories of equally summary judgment and 
execution are told of pioneer justices of the peace at 
" Piety-hill " Camp in Shasta, and at camps in Klamath 
and Butte. 

In one very amusing case reported from Nevada 
County, two alleged horse-thieves were brought before 
an old justice of the peace whose fame for honest, origi- 
nal, and usually sensible decisions had gone abroad. 
The friends of the two lawj^ers who conducted the case 
had laid wagers as to which lawyer would make the 
best speech ; but of this the justice was, of course, kept 
in ignorance. The lawyer for the prosecution made 


out an unusually clear case ; but the defendants' attor- 
ney called up a man from a neighboring camp, and 
asked, " What was the prisoners' character at the Eas^ 
where you knew them ? " 

" It was good," replied the witness. 

" Good character ! " squealed the brusque and excited 
old justice. " Good character, when they have been 
proved to be damned thieves ? That evidence won't 
do. They stand committed. Sheriff, take them to jail." 
A shout went up from the assembled crowd, and all 
wagers were declared " off." 

The early justices of the peace in Tuolumne County 
were endowed with the same miscellaneous assortment 
of judicial powers that we have noted in Nevada : in 
some respects the survival of alcalde powers was more 
complete in the southern mines, where those powers had 
always been more despotic. 

Justice Barry of Sonora, successor of the last alcalde 
of that region, was a type of a large class. He had an 
advertisement inserted in the Sonora "Herald" of July 
4, 1850 (the first issue of the first newspaper published 
in the mines of California), which read as follows : 

" All persons are forbid firing off pistols or guns within the limits 
of this town under penalty ; and under no plea will it be hereafter 
submitted to ; therefore a derogation from this notice will be dealt 
with according to the strictest rigor of the law so applying as a 
misdemeanor and disturbance of the peaceful citizens of Sonora.'* 

In the foregoing, "the judicious printer" had evi- 
dently corrected the orthography ; but no printer could 
destroy the expressiveness of " derogation " and " strict- 
est rigor." The following decision is given verbatim et 
literatim, and in the annals of frontier-justice docu- 
ments it certainly deserves a high place. The affair 
which drew out this paper was a case in which the 


State was prosecutor, and a Mexican named Barretta 
was defendant. The trial lasted nearly two days, law- 
yers being engaged on both sides. Justice Barry, after 
several hours of study and reflection, returned his de- 
cision in the form of a written document, still in exist- 
ence. It reads as follows : 

" Having investigated the case wherein Barretta has bean 

charged by an old Mexican woman named Maria Toja with having 
abstracted a box of money which was burried in the ground jointly 
belonging to her self and daughter, and carrying it, or the con- 
tents away from her dwelling, and appropriating the same to his 
own use and benifet, the suppossed arnmount being over too hun- 
dred dollars ; but failing to prove positively that it contained more 
than twenty, and that proven by testimony of his owne witness, 
and by his owne acknowledgment, the case being so at variance 
with the common dictates of humanity, and having bean done 
under very painful circumstaces, at the time when the young 
woman was about to close her existance, the day before she died, 
and her aged mother the same time lying upon a bead of sickness 
unable to rise or to get a morsel of food for her self, and he at that 
time presenting him self as an angel of releaf to the poor and 
destitute sick, when twenty poor dollars might have releaved the 
emediate necessitys of the poor, enfeabled, sick, and destitute old 
woman, far from home and friends. Calls imperitively for a severe 
rebuke and repremand for sutch inhuman and almost unprece- 
dented conduct, as also for the necessity of binding him over to the 
Court of Sessions in the sum of $500^^-. 

(Signed) R. C. BARRY, J.P. 

" SONOBA, Nov. 10, 1851." 

Amusing as is this summing-up, this special pleading, 
this honest indignation, and characteristic of the mining- 
camp justice as is the entire document, yet the reader 
cannot but feel a sense of disappointment at the out- 
come. One fully expects a sentence that shall fitly 
punish the Barretta enormities. But Justice Barry 
recognizes the rights of the newly established court 
of sessions, though evidently with a struggle, and 


he will keep strictly within his powers as defined by 
State law. The court of sessions consisted of the 
county judge and two justices of the peace, and had 
original jurisdiction in all criminal cases except murder, 
manslaughter, and arson. Justice Barry was a member 
of this court. Sonora was in 1851 the county-seat of 
Tuolumne. In 1863 the sessions courts of California 
were abolished by a constitutional amendment. 

From papers still in the Tuolumne-county records, it 
appears that Justice Barry acted as town coroner, for 
which his fees were ten dollars in each case. Between 
Oct. 20, 1850, and July 28, 1851, we have the following 
record of violent deaths : William Doff, Michael Burk, 
James Haden, and William A. Bowen, all murdered, 
" no clue to the perpetrators ; " George Williams, sui- 
cide ; William Bowen, hung at Curtis Creek, for killing 
A. Boggs ; T. Newly, killed by an outlaw named Fuller, 
who made his escape; Leven Davis, "killed by a rifle- 
shot in a Jumping Claim Row ; " two homicides decided 
to have been justifiable. Almost every document winds 
up with, "Justice fees ten dollars," or "Coroner's fees 
ten dollars." 

One document (No. 997) in Justice Barry's court, 
was a writ issued to the sheriff, ordering him to summon 
parties charged with having jumped a town lot belong- 
ing to " one Donnalld," who " claims his rights as an 
American cittizen by claiming a writ to disposess them, 
and to have restitution according to law with appropi- 
ate damages for the imposission now about to be carried 
out against him by sutch high-handed and mercenary 
arrowgance on the part of aforesaid accused." 1 

1 These records of Justice Barry's courts are taken from a very rare 
pamphlet, published at Columbia, Tuolumne County, in 1856, by Hecken- 
dorf and Wilson, and entitled a Miner's and Business Directory. It 


Many other stories of the early courts of justices of 
the peace might be told, but enough has been said to 
give some idea of their methods and powers. Calaveras, 
Stanislaus, Amador, El Dorado, and Tuolumne appear 
to have contained a large number of camps where these 
officers had more extensive powers than elsewhere. 

The men who were chosen justices of the peace in 
these mining-camps were often eccentric and illiterate, 
but as a rule their honesty and good judgment were 
unquestionable. They had the full confidence of the 
people, and were conscious of the responsibilities of 
their office. In many a town of the mining-region, the 
pioneers still remember their names with respect, and 
still smile over their eccentricities. One of them, when 
dying, left "all his money, after paying funeral ex- 
penses " (some five hundred dollars), to " the boys for 
a treat ; " and it was duly spent in the saloons of the 
camp. Yet he is said to have dealt out justice with 
firmness and good sense : his official conduct was sat- 

The race of such " miners-justices " has disappeared ; 
and the office has shrunk each year to lesser powers and 
narrower duties, until it is now only the smallest wheel 
in the complex judicial machinery of the Common- 
wealth. But there is no doubt of the fact, that socially 
the position held to-day by a justice of the peace in 
the old mining-region retains something of its former 
prestige and dignity : the justice is often " judge " or 
" squire," terms that one seldom hears thus applied in 
the valley counties. 

was lent me by the kindness of Mr. William G. Dinsmore of Oakland, 



THE nature of the town organizations adopted by the 
miners in a number of instances next claims our atten- 
tion. As soon as a camp was thought to be " perma- 
nent," that is, supported by rich mines, and by lesser 
and tributary districts, there was always talk of town 
government; perhaps from those used to the town 
councils of the Eastern States, perhaps from ambitious 
politicians. Sometimes the compromise that was made 
consisted in the election of a "committee of manage- 
ment," a council of three or five to attend to town 
affairs. Of fully organized town government, however, 
the best examples that the mines afford are those of 
Sonora and of Nevada City. 

Mention has already been made of the struggle to 
obtain control of Sonora Camp in the days of '48, when 
an American alcalde was first chosen. Th6 border-land 
position of the camp makes all its history interesting. 
Few of the mining-camps offer material of equal value 
for our investigation. The Americans of Sonora and 
that vicinity were from the first outnumbered by the 
foreign population, and only united action saved them 
from being overwhelmed. There were but nineteen 
" white men," two of whom were Frenchmen, four 
Spaniards, and the rest English, Scotch, and Ameri- 



cans, in Sonora Camp in 1848 : the rest of its popula- 
tion were Mexicans and Chilians. Before the close of 
1849 the total population was five thousand, and the 
camp was ruled by Americans. The manner in which 
town organization then arose was entirely unforeseen 
and unpremeditated. 

As soon as the rainy season of 1849-50 set in, mul- 
titudes of miners, many of them Mexicans, were attacked 
with scurvy, owing to their exclusive diet of salt meat, 
since vegetables could be obtained only in small quan- 
tities, and at enormous prices. The resources of char- 
itable individuals were evidently inadequate to cope 
with the evil, and it was proposed to organize and 
establish a town hospital. Nov. 7, 1849, this idea took 
form in the creation of a town government, it being 
felt that every thing had best be kept under one manage- 
ment. Mr. C. F. Dodge was then the alcalde of Sonora, 
and he was asked to act as mayor of the town. A 
council of seven members, five Americans and two 
Frenchmen, were elected to serve until further notice. 
They at once established a hospital, which was success- 
fully maintained for more than six months, or until the 
ravages of scurvy were checked. 

Expenses were enormous. Lime-juice cost five dol- 
lars a bottle, potatoes one dollar and a half a pound ; 
canned fruits and all anti-scorbutics were twenty-fold 
the usual prices. Wages of servants were eight dollars 
a day. 

The alcalde dedicated his official fees to hospital uses, 
and the citizens contributed largely ; but the chief 
financial resource was soon seen to consist of the va- 
cant town lots. The council, shortly after its organi- 
zation, ordered a survey of the town, and had quite a 
number of new streets laid out. Up to this time, any 


one who chose took possession of a vacant lot, with the 
understanding that no one was to occupy more than 
one such lot of a reasonable size. All the hillsides 
not claimed under the mining-laws of the camp were 
unfenced, and used as common pastures until thus 
taken up for building-purposes. The winding streets 
of the earlier portion of the town followed the base of 
the canon, or the lines of old pack-mule trails on the 
hillside. Land had possessed no value, except as used ; 
and no one had taken more than he needed, for that 
only involved the building of more brush or picket 
fence. But when the new council had streets laid out, 
and lots surveyed, it gave them a positive value. Sel- 
dom, if ever before, has an American town attained to 
a population of several thousand without a great deal 
of very lively land-speculation; but the miners of 
Sonora Camp had lived in blissful unconsciousness of 
that resource. 

Just about the time the survey was completed, but 
before the town council had asserted any particular 
rights over outside lands, the first State Legislature 
met, divided the State into twenty-seven counties, of 
which Tuolumne was one, and selected Sonora as its 
county-seat. Before the latter fact was known outside 
of the committee-rooms, one of the legislators wrote to 
a member of the Sonora town council, informing him 
that the county-seat question had been settled in favor 
of Sonora, and asked him to " take some of the boys, 
and secure possession of just as many town lots as pos- 
sible," expecting, of course, to share in the profits. 

The councillor was thoroughly indignant. He walked 
into town meeting that very night, with the letter in 
his hand, read it to the mayor and council, and offered 
a resolution, which was unanimously passed, that no 


one should be permitted to take up vacant lots, " be- 
cause all such unoccupied lands do belong to this town 
in its corporate capacity." This action was promptly 
enforced. From time to time, the lots were sold to the 
highest bidder, and the proceeds devoted to the town 

When the county of Tuolumne was fully organized, 
it was found that the town government could have no 
legal existence without a special charter from the Legis- 
lature. It was therefore disbanded ; and, the office of 
alcalde having been abolished, the only officer to rule 
the town was the "miners' justice of the peace," the 
Justice Barry mentioned in the previous chapter. But 
a charter was procured; and under it, in 1851-52, a 
mayor, marshal, attorney, sheriff, treasurer, clerk, re- 
corder, assessor, and seven aldermen were elected. 
This proved too expensive ; and in 1855 the town gov- 
ernment was simplified, under a new charter, to a board 
of five trustees, with merely municipal powers. . 

The early Sonora town-council experiment seems in- 
teresting chiefly because of its spontaneity of growth. 
Established to secure a town hospital, and relieve the 
alcalde of its extra duties, it at last took all the man- 
agement of town affairs upon its shoulders ; while the 
mayor, still acting as alcalde, decided disputes and 
criminal cases brought before him. The councillors 
received no salaries, and most of them could devote 
only their evenings to their official duties. 1 

1 As illustrating with clearness the " political atmosphere " of the 
mining-camps of 1850-51, the following instance deserves attention. 
Tuolumne County elected as one of its representatives a young man 
whose poverty was so great, that, after he was chosen, the citizens of his 
district assembled, regardless of party, and voted him a gift of sev- 
eral hundred dollars to buy clothes, pay stage-fare to the capital, and 
live comfortably till he could draw his salary. He made the best of 
records, afterwards practised law, and gained a competence. 


Nevada City also had an experience of town govern- 
ment under the mining regime. The camp that in the 
spring of 1850 was only a collection of a few tents and 
brush huts, grew by August to a town of two thousand 
inhabitants ; while within a radius of four miles a popu- 
lation of eight thousand men were at work, in a dozen or 
more lesser camps. On Dec. 22, the " Alta California " 
called Nevada " a frost-work city ; " for hundreds of 
miners had abandoned the region, and the town seemed 
in the last stages of ruin. In the spring of 1851, all 
mining-interests revived, and the town soon recovered 
its former prosperity. Its enthusiastic citizens now pro- 
cured a charter for a city government, and incorporated 
it on a liberal scale, providing for a mayor, marshal, 
clerk, recorder, and nine aldermen, including the 
"president of the council." They purchased a city- 
hall, built a jail, and established a hospital; for here, 
also, miners were dying of scurvy. 

But Nevada City had no common lots to sell, no taxes, 
and few license fees were collected ; and the financial 
resources of the organization were soon at an end. By 
September the town government had run itself eight 
thousand dollars in debt, and a public meeting was 
called to consider the problem. The aldermen agreed 
to discharge all the city officials, and suspend opera- 
tions. Early the following spring, the State Legislature 
repealed the charter. Some of the scrip issued by the 
city was never redeemed, because the very disastrous 
fires which occurred late in the gold-era crippled its 
resources for some time. In 1853 the town was again 
incorporated, under a less expensive form of govern- 

( Fifteen or twenty mining-towns received charters, 
and organized some sort of town government during 


the gold-era. Weaverville, Shasta, Oroville, Grass 
Valley, Nevada City, Jackson* Placerville, and some 
places that are now but waste and almost deserted vil- 
lages, organized on a liberal plan, so soon as the day 
of tents and rough shanties had passed. \ It must be 
remembered that a great deal of capital went into per- 
manent investments in these thriving and energetic 
towns. Brick blocks, three-story hotels, stores, banks, 
and fine residences embowered in blossoms and sur- 
rounded by lawns, were not infrequent long before 
1856 in all the towns we have named/ Population 
lessened as the mines decayed ; and in many cases such 
investments proved unprofitable, or, indeed, nearly 
worthless. But the spirit of confidence that led miners 
to organize town governments so soon was eminently 
praiseworthy. Some of the schemes of the time were 
notable. A costly plank-road between Grass Valley 
and Marysville was discussed ; plans for railroads were 
made public; the toll-road system developed rapidly, 
and was very important ; local improvements, town- 
halls, theatres, costly bridges, met with hearty indorse- 
ment. | Unity of action, and sympathy of interests, gift 
of early camp-life, are peculiarly characteristic of moun- 
tain towns of the gold-region, even at the present time. \ 
The towns are but overgrown and permanently settled 
camps. Nothing that is likely to happen will ever de- 
stroy this mining-camp atmosphere, that still pervades 
such peaceful and orchard-surrounded towns as El 
Dorado, Auburn, Grass Valley, with the loyalty and 
earnestness, the strength and freedom, of their tent and 
rocker period. 



THE heterogeneous population of the mining-region 
included a strange medley of races from the islands and 
shores of the Pacific, from the provinces of Mexico, 
and the countries of Southern Asia. Outlaws, des- 
peradoes, men who had long before flung defiance in 
the face of law and society, were far too abundant in 
this conglomerate mass. Difficulties with such foreign- 
ers were inevitable, and they only served to weld the 
Americans into a closer union. Sometimes, however, 
the Americans were unjust and overbearing, or were 
at least careless and indifferent to the rights of others. 
It is an old story, still told in the mines, that idlers and 
gamblers have often been known to " raise a stake " by 
a double collection of the foreign-miners' tax from Chi- 
nese or Mexicans. The treatment of the early French 
miners, who, in 1849 and 1850, were forcibly driven 
from their claims in several camps, was simply out- 
rageous ; and the better class of miners did not always 
interfere to protect them against the bands of ruffians 
who desired their property. The filibustering expedi- 
tion of Count Raousset to Sonora, with its romantic 
features and tragic termination, would probably never 
have occurred, had it not been for the attacks which 
drove so many Frenchmen from the mines. 


As for the Chinese, there were large numbers of 
camps where none were allowed to work or hold claims 
at any time. They now find employment in many of 
the old and nearly exhausted gulches, working over the 
gravel, and often, it is thought, making quite valuable 
" finds." Their patience, perseverance, and industry are 
tireless. Even at the present time, however, there are 
camps within whose precincts no Chinaman is ever al- 
lowed to set foot. The local laws of Churn Creek Dis- 
trict, Shasta County, as late as 1882, forbade any miner 
to sell a claim to a Chinaman, or to give employment to 
one. The feeling is, that, so long as white races find it 
pays to work the district, they shall be allowed to do 
so : when they desert the camp, the Chinamen may, of 
course, take possession. In many of the camps of the ' 
flush period, however, Chinamen were allowed to hold 
and work claims, by paying their foreign-tax. It was 
the experience of American miners, tnat many of the 
Chinamen were adept claim and sluice-box thieves ; and 
to this fact the beginnings of the undoubted prejudice 
against them can be traced. 

One of the cases where indignation against foreigners 
had much justification was during 1850 and 1851, in 
the southern mines. In June of the former year, the 
collector appointed by^the State to receive the "foreign- 
miners' tax," then thirty dollars a month, arrived in 
Sonora. This sum had not been exorbitant in the 
newer camps, but in many cases men began to find it 
difficult to obtain so much. The foreigners, chiefly 
Mexicans, met, and denounced it, held public meet- 
ings, refused to pay a cent, and seemed so determined, 
that rumors went abroad to the effect that armed re- 
sistance could be expected. The miners of the sur- 
rounding camps armed themselves, and, to the number 


of several hundred, marched into the town, set a watch, 
organized patrols, and offered their services to the 
alcalde "for the preservation of peace and the sup- 
pression of crime." The Spanish-Americans in Sonora 
and in several Mexican camps adjoining, or not over 
four miles distant, seem to have far outnumbered the 
tax-supporters, and there was every reason to expect 
a collision. 

About this time many of the Mexicans left their 
claims, and, retiring to the mountain fastnesses, be- 
came outlaws ; so that, in a few weeks, robberies and 
murders were of almost daily occurrence. July 3 the 
citizens of Sonora met in public meeting to discuss 
"the public safety, and methods of self-protection." 
They resolved to organize a rifle company " of twenty- 
five men good and true ; " they elected a captain, and 
ordered him to raise his company at once, and report to 
the new "court of sessions." They also chose a finance 
committee of three members, and began to take sub- 
scriptions from different individuals and camps. 

July 10 four Mexicans were discovered piling brush 
upon and burning the bodies of two American miners. 
They were arrested, and hurried into Sonora. A crowd 
assembled; a jury was empanelled, and a judge chosen. 
The defence set up was, that the bodies had been lying 
there for several days, that the real murderers were 
unknown, and that it was the Mexican custom to cre- 
mate the bodies of the dead. But by this hasty and 
illegal trial, illegal, because the court of sessions was 
fully organized, and the case came within its jurisdic- 
tion, the prisoners were condemned. A riata was 
'passed over the limb of an oak, and the trembling Mexi- 
cans brought forward to meet their doom. At this 
exciting moment Judge Tuttle, one of the bravest and 


best of the pioneers of that region, accompanied by 
Judges Marvin, Radcliffe, and other gentlemen, arrived. 
Judge Tuttle made a thrillingly earnest appeal, saying 
that now the county had law, had courts, and could not 
afford to disgrace its record. The prisoners were given 
up, and taken to jail by the town officers. 

The next week, district court and county court were 
both in session, and for the first time. Monday morn- 
ing over eighty armed citizens of the town marched 
through the streets; and three hundred miners from 
" Green Flat Diggins," where the murdered Americans 
had been found, arrived to see the laws carried out in 
the punishment of the murderers. Every knife and 
revolver in every camp within a radius of a dozen miles 
was strapped to some stalwart miner's side, and either 
already in Sonora, or on its way to that place. The 
assembled miners were assured that speedy and reliable 
justice would be afforded, and they prepared to remain 
till the end of the trial. 

Rumors of an uprising in a Mexican camp three miles 
distant were so numerous that the sheriff, with a posse 
of thirty American miners, went thither, arrested one 
hundred and ten Mexicans, marched them to Sonora, 
and confined them in a corral until the next day, when 
they were cross-examined by an interpreter, and, prov- 
ing their innocence, were released. 

Tuesday was the beginning of the famous trial. 
Fully two thousand armed and excited men were in 
the streets of the town. There was much talk ; but the 
resolution to support the law, and abide by the decision 
of the court, was steadily increasing in strength. Part 
of Tuesday and all day Wednesday, the trial continued. 
" There did not appear a tittle of evidence against the 
prisoners, and the jury acquitted them." So, at least, 


runs the report of the newspapers of the time. And 
the crowd, ashamed, it may be, of their haste and eager- 
ness for blood, signified their approval, and separated 
in silence. 

Before the close of this eventful day, there were ac- 
counts of new outrages and murders. A public meet- 
ing was held, and Judge Tuttle was the speaker. He 
urged the necessity of active organization to arrest the 
progress of crime, and secure the safety of citizens. 
The chairman of the meeting appointed a committee 
of safety, which called a mass-meeting to assemble four 
days later, and strengthened the town-patrol. 

Resolutions adopted at this mass-meeting were to the 
effect that 

" Whereas, The lives and property of Americans are in danger 
from lawless marauders of every clime, class, and creed under the 
canopy of heaven, and scarcely a day passes that we do not hear 
of the commission of murders and robberies : 

" Resolved, That all foreigners in Tuolumne County, except per- 
sons of respectable character, be required to leave within fifteen 
days unless they obtain a permit from the authorities hereinafter 

"Resolved, That the authorities referred to be a committee of 
three, to be chosen by the American citizens of each camp. 

" Resolved, That all foreigners in this county (except such as 
have a permit) are notified to turn over their weapons to the com- 
mittee, and take a receipt for the same." 

The other resolutions provide for carrying this plan 
into effect. But the really dangerous men, the scattered 
Mexican outlaws, whose camps were in the mountain 
fastnesses, and hardly two nights in the same place, 
could not be reached by any such method ; and it was 
not enforced except in a few camps where difficulties of 
an aggravated type had occurred. 

The next year, an attempt having been to fire the 


town, and an organized band of thieves having been 
discovered, a new vigilance-committee was established, 
which was in session several times a day for three or 
four weeks ; which punished petty crimes by whipping, 
and banished a number of suspected persons. This 
committee seems to have refrained from all excesses, 
and it turned over to the civil authorities the only man 
that was brought before its tribunal charged with a 
capital offence. When order was restored, the vigi- 
lantes disbanded, and left the regularly constituted 
authorities in full authority. 

The " southern mines " furnish some of the worst 
cases of mob-law, as well as some of the best examples 
of law-abiding, justice-seeking organization. The great- 
est number of difficulties with foreigners occurred there, 
and some of the worst quarrels over disputed claims 
were in those southern camps. It has been said by 
some observers, that men were readier to resort to the 
arbitrament of the revolver in the southern than in the 
northern mines. If such were the fact, it would not be 
surprising; for gold-seekers from the South-west and 
South predominated in those camps, as men from the 
North-west and North did in the camps north of Placer 
County. Organization in the southern camps was 
under greater difficulties, but it seems to have been 
fully as complete and successful as in the more north- 
ern camps. Some of the most orderly of the southern 
camps were controlled by New-England men, some by 
Georgians and Virginians. The steady evolution of 
society in these camps, out of the chaotic mixture of 
men of every race and characteristic, deserves our ad- 
miration ; but a close study of the newspapers of the 
time, and the evidence of pioneers, convinces us that it 
is difficult for the American frontiersman to avoid treat- 


ing the Mexican frontiersman with a sort of contempt- 
ious defiance. Joaquin Murietta, and his outlaw reign 
of years, was the natural result, not of deliberate injus- 
tice on the part of the American miners as a body, but 
of blameworthy carelessness that too often permitted 
the viler elements of the camp to enforce by actions 
their rude race-hatred of the " Greasers." This tend- 
ency to despise, abuse, and override the Spanish- 
American, may well be called one of the darkest threads 
in the fabric of Anglo-Saxon frontier government. 



THERE was a very remarkable example of the gold- 
seekers' methods of settling serious disputes, which 
once occurred in the northern part of California. It 
fairly deserves to be termed one of the most important 
and interesting of litigations in the early history of the 
mines. In many respects, it is even entitled to rank 
as the unique example of a higher type of organized 
effort to do the best thing possible under each and 
every circumstance, than is shown in the history of any 
other mining-camp of the period. The following brief 
account of the case rests upon the recollections of one 
of the most genial, generous, and intelligent of early 
Californians, Mr. Anton Roman, first publisher of the 
"Overland Monthly," who spent sixteen months dur- 
ing 1850 and 1851 in several of the most successful 
mining-camps in Klamath and Siskiyou. Upon his sto- 
ries and recollections some of Mr. Francis Bret Harte's 
best prose-work is founded ; and they still afford a mine 
of invaluable material, literary and scientific. 

Scotch Bar is rather indefinitely located by my in- 
formant as "in the Siskiyou-Klamath region." It was a 
highly prosperous camp, " booming " as the miners said ; 
and the fame of its rich placers had already extended 
to Trinity, Shasta, and_Butte, attracting traders, pros- 
pectors, and parasites of the camp. Exactly what local 



laws and local officers the camp had, we do not know ; 
but probably much the same that were known to dis- 
tricts in the central part of the State. It is likely that 
they had elected a justice of the peace, allowing him 
to settle their disputes over boundaries, and to keep 
a record of their claims. At least, so it appears, the 
camp had been peaceable, law-abiding, and contented ; 
the miners had dwelt together in concord, much in the 
spirit of the Arcadian days of '48 ; and it was " a royally 
good camp to live in." 

Some time early in 1851, a discovery of some very 
"rich gravel," or mining-ground, was made, and made 
in such a way, also, that two equally strong parties of 
prospectors laid claim to it at the same time. There 
were about a dozen men in each party, and both groups 
were entirely honest in their belief of the justice of 
their respective claims. Each clan at once began to 
increase its righting numbers by enlistments from the 
rest of the camp, till twenty or thirty men were sworn 
to each hostile assembly. The ground in dispute was 
so situated that it was best worked in partnership, and 
thirty claims of the ordinary size allowed in the dis- 
trict would occupy all the desirable territory of the 
new find. So there were two rival companies ready to 
begin work, and no law whatever to prevent a pitched 

It began to look more and more like fighting. 
Men were asked to join, and bring their bowies, revolv- 
ers, and shotguns. Men were even forced to refuse the 
honor, against their wills, because, forsooth, there were 
no more weapons left in camp. The two opposing par- 
ties took up their stations on the banks of the gulch ; 
there was further and excited talk ; at last there were 
eight or ten shots interchanged, fortunately injuring 


no one. But by this time the blood of the combatants 
was fairly roused; the interests at stake were very 
large ; neither side proposed to yield : and the next 
minute there probably would have been a hand-to-hand 
conflict, except for an unlooked-for interference. 

The camp, the commonwealth, the community at 
large, had taken the field the very moment the first 
shot was fired. Dozens and hundreds of men, five 
minutes before mere spectators of the difficulty, at once 
compelled a parley, negotiated a truce, and urged a re- 
sort to legal methods. The moment this compromise 
was suggested, the combatants laid aside their weapons. 
They knew there was no legal authority within twenty 
miles, and not even in the camp itself any force able 
to keep them from fighting ; for persuasion was the 
only argument used, and it is not supposable that the 
rest of the miners would have actually fought to pre- 
vent fighting. It was a victory of common-sense, a 
triumph of the moral principles learned in boyhood in 
New-England villages and on Western prairies. " Men 
more thoroughly fearless never faced opposing weap- 
ons ; " but the demand for a fair and full trial in open 
court found an answering chord in every bosom. 
Both parties willingly agreed to submit to arbitration ; 
but not to the ordinary arbitration of the "miners' 
court," or of the "miners* committee," or of the " miners' 
alcalde," all of which we have heretofore described. 
They thought out a better plan, and adopted it after 
a few moments' discussion. 

The rude and often biassed jury of the camp was 
repudiated by both contestants alike. None of the 
ordinary forms of tribunal known to the mining-region 
seemed to them entirely adequate to this momentous 
occasion. They chose a committee, and sent it to San 


Francisco. There they had three or four of the best 
lawyers to be found, engaged for each party ; and they 
also engaged a judge of much experience in mining- 
cases. It was a great day at Scotch Bar when all this 
legal talent arrived to decide the ownership of the most 
valuable group of claims on the river, claims that 
had been lying absolutely idle, untouched by any one, 
guarded by camp-opinion and by the sacred pledges of 
honor, ever since the day of the compact between the 
rival companies. 

Well, the case was tried with all possible formality, 
and as legally as if it had occurred within the civil 
jurisdiction of a district-court. It is not reported in 
any of the California law-books ; but no mining-case 
ever commanded better talent, or elicited more exhaus- 
tive and brilliant arguments. The lawyers and judge 
were there to settle the case ; the entire camp wanted it 
settled ; both parties to the dispute were anxious to find 
out who the real owners were. In order to show the 
childlike sense of fairness the miners had, we should 
mention that before the trial began it was arranged by 
mutual consent that the winners should pay costs. To 
the losers, it was sufficient to have failed to prove title 
to such rich claims : they must not be made still poorer. 

Now, in ordinary cases of camp-rule, there is often 
too much compromise : one claimant gets less than he 
deserves, while the other gets more. But in this justly 
famous Scotch-Bar case, there was in the end a verdict 
squarely for one side, and squarely against the other. 
The defeated party took it placidly, without a murmur ; 
nor then, nor at any other time, were they ever heard 
to complain. The cheerfulness of their acceptance of 
the verdict was not the least gratifying episode of the 
famous trial. 


" Ah ! it was a great case," writes our informant, after an inter- 
view with Mr. Roman. " The whole camp was excited over it for 
days and weeks. At last, when the case was decided, the claim was 
opened by the successful party ; and when they reached bed-rock, 
and were ready to ' clean up,' we all knocked off work, and came 
down and stood on the banks, till the ravine on both sides was 
lined with men. And I saw them take out gold with iron spoons, 
and fill pans with solid gold, thousands upon thousands of dollars. 
Ah ! it was a famous claim, worth hundreds of thousands of 

On the bank, along with these hundreds of specta- 
tors, stood the defeated contestants, cheerful and even 
smiling : it was not their gold, any more than if it had 
been in Africa. And the successful miners brought 
their gold out on the bank, divided it up among them- 
selves, so many pounds apiece, and each went to his 
tent to thrust the treasure under his blankets till a good 
opportunity arrived for sending it to San Francisco. 

The community capable of that Scotch-Bar case was 
a community which could be trusted to the uttermost. 
Put it down on a desert island, and it would organize a 
government, pick out its best men, punish its criminals, 
protect its higher interests, develop local institutions ; 
and soon, unless its natural surroundings forbade, there 
would be a healthy, compact, energetic state, with 
capital city, seaports, commerce, navy, and army. Put 
it down on a new continent, and it would eventually 
possess, control, and develop all its resources and ener- 
gies ; doing the work that Rome did for Italy, that the 
Puritans did for New England, and through New Eng- 
land for the United States. And if the evidence of 
travellers, of the pioneers themselves, and of the insti- 
tutions they organized, can be trusted, there were many 
such camps in California. The Siskiyou region did not 
monopolize that habit of self-control, of acceptance of 


the situation, of submitting questions to the best obtain 
able courts, and of abiding by their decisions. From 
Klamath to Colusa, from Siskiyou to Fresno, from Lab 
Bowman to Trinity Peak, manhood and honesty rule( 
the camps of the miners. Some were ruled better than 
others, but all were ruled well. 



THIS portion of our subject would not be complete 
without some allusion to irregular and sporadic forms 
of miner organization, to burlesque meetings, to later 
forms connected closely with the earlier assemblages 
of " all the miners of the district," and, lastly, to cases of 

Rough and Ready Camp, in Nevada County, so inter- 
esting by reason of its simple and effective standing 
committee, or council, affords a valuable though eccen- 
tric example of independence. The township contains 
about a hundred and twenty-seven square miles, and 
was very prosperous in 1850, when a miner named 
Brundage conceived the idea of having a permanent 
and separate organization to be called the "State of 
Rough and Ready." He called a meeting, evidently in 
dead earnest, and proposed the scheme ; urging that 
none of them had voted for the State Constitution, nor 
helped, through delegates, to make that instrument. 
About a hundred persons favored the plan, and for 
some time he continued to agitate its adoption ; but the 
funny and absurd elements of the proposal so appealed 
to the miner's abundant sense of the ludicrous, that the 
entire scheme disappeared at last, in a fit of irrepressi- 
ble and Homeric laughter. It became a topic of con- 
versation in every cabin, and beside every long-torn, 



for miles ; but the State of California was good enough 
for the light-hearted, keen-witted miners. 

A curiously burlesque assembly gathered together in 
Grass Valley in the winter of 1852-53, and is known 
in local history as "The Hungry Convention." The 
winter had been so severe that supplies were short : 
bacon and flour had once again risen to the prices of 
1849. Miners could not work their claims, and were 
assembled in the town, spoiling for some enterprise or 
excitement. So a meeting was called, in dignified ear- 
nest, to consider whether the scarcity of provisions could 
in any manner be relieved. Every one soon saw, that, 
in the condition of the roads, there was nothing for it 
except patience : the merchants would secure supplies 
at the earliest moment possible. The meeting imme- 
diately degenerated into a wild burlesque. Speeches of 
the most desperate and communistic order were made, 
and hailed with shouts of laughter and applause. A 
duly elected committee reported, declaring war upon 
San Francisco, and their resolve to have supplies thence 
" peacably if we can, forcibly if we must." 

The later history of the mining-camps affords innu- 
merable examples of the keen pleasure that the average 
American pioneer takes in public meetings, in resolu- 
tions, in committees, chairmen, and "big talks." He 
does it in sober earnest most of the time, but now and 
then he does it for the mere fun of the thing. The men 
of the mining-region are even now, after all the changes 
of the past thirty years, a race of men peculiarly ready 
to assemble for free discussion, peculiarly apt to have 
debates in the district-schoolhouse, to start arguments, 
and listen to stump-speeches. The early training of 
miners' courts and of camp-life has left its impress upon 
the people of the mining-region. They differ from the 


people of the valleys, as the mountaineers of Tennessee 
differ from the dwellers in the lowlands. But they 
have closer and better organization, a more abiding 
habit of seeking each other's counsel, of meeting in 
assemblies, and of discussing their affairs, than ordinary 
mountaineers have. The life of the gold-seeker brings 
men closer together in their camps and districts, and 
creates links of town-life, while the purely pastoral 
mountains still remain almost a wilderness. 

Yet one must ask, in reviewing the subject of camp- 
government, Did the machinery of justice set in opera- 
tion by the miners never degenerate into the weapon 
and excuse of a mob ? Were the innocent never pun- 
ished, the guilty allowed to go free ? Did not feverish 
excitement and unreasoning violence too often rule? 
What, after all, was the miners' court, but an appeal to 
lynch-law, as that term is now understood? Were not 
council government and alcalde government, scarcely 
less than the miners' court itself, based on the will of 
the mob, and liable to strange outbursts, fluctuations, 
and monstrosities ? 

We find, throughout the mining-era, sporadic cases of 
true mob-law ; of men being hung without judge or jury, 
without fair trial, and perhaps without justification. 
Considering the population, these cases were scarcely 
more numerous than in the Western States to-day. 
Regularly organized miners' courts proceeded with great 
care, and gave the prisoner the benefit of every doubt. 
Those men who were killed by mobs were usually caught 
red-handed in the act. In one notable case, a murderer 
was beaten to death before he was a hundred yards 
away, by pick-handles caught up hastily from a barrel 
in front of a store. In another instance, the murderer 
was stoned to death, with more than Hebrew energy, 


before he could climb the steep banks of the ravine 
where his victim lay. 

The men who had led in organizing miners'-courts 
were the first to advocate their abandonment in crim- 
inal cases so soon as the county organization was possi- 
ble, and were the first to oppose mob violence. In 
Nevada County, in 1850, a man named Studley was 
falsely accused of stealing a nugget worth three hundred 
and twelve dollars from a miner ; and the crowd seized 
him, tied him to a tree, and proceeded to administer a 
flogging. Judge Roberts and several friends were pass- 
ing; and they rushed into the crowd, released him, and 
soon proved his entire innocence of the theft. At 
Rough and Ready, in 1851, two miners, Stewart and 
Watson, rode into the town one afternoon, and saw a 
stranger being led by a mob who purposed to hang 
him. They drew their pistols, ran into the crowd, 
shouting, " You have the wrong man : let go of that 
man ! " organized a committee, secured a fair trial ; and 
in an hour the prisoner, who was accused of having 
stolen three hundred dollars, was set free. Cases like 
these were not the work of camp-organization, but of 
the roughs and hangers-on of the camp. Arid even the 
courts at that time awarded capital punishment for 
grand larceny. 1 " Law-abiding citizens from the first " 
is what Hon. A. A. Sargent calls the old " forty-niners." 
Nearly always, when passion and prejudice swayed the 
crowd, men of nerve and courage were at hand to 
check the tendency to mob-law. .Sometimes it was the 
county or township officers who first interfered ; as at 

1 For about a year, 1850-51, a law which permitted a jury to bring in 
a verdict of death for grand larceny was on the statute-books. Under 
this law, one man was hung in Nevada County, one in Marysville, one 
in Sacramento, and one in Tuolumne County. 


Beckman's Flat in 1852, when a miner was accused by 
his partner of theft, and was about to be hung by the 
crowd, when the county sheriff and the district attor- 
ney arrived on horseback, and rescued the prisoner, who 
was proved innocent. Perhaps the worst case of mob 
violence that ever occurred in the northern mines was 
at Newtown Camp, in March, 1852, where a jury of 
twenty-four, a presiding judge, and a clamorous crowd 
condemned on the merest suspicion of theft a negro, and 
hanged him immediately. As late as September, 1855, 
the Grass Valley community, roused to deep indigna- 
tion against incendiaries, came near hanging a man who 
was found lighting his pipe near some unfinished build- 
ings. In 1874 the mountain town of Truckee, infested 
by persons of bad character, was purified by a secret 
organization known as " 601," which killed one person, 
and severely wounded another, besides banishing quite 
a number. 

Cases of lynch-law occur from time to time in 
almost every frontier community, and too often in 
older communities also. But the difference between 
the true miner-courts of the gold-era, and such cases of 
mob-law, is fundamental and generic. Lynch-law, in 
the plain, every-day acceptance of the term, is the work 
of an association of men who have determined to vio- 
lently expedite, or to suddenly change the course of, judi- 
cial procedure in one individual case. They announce 
no new laws, create no new system, add nothing what- 
ever to the jurisprudence of the land. The moment 
the piece of work they were banded together to do is 
accomplished, they separate, and the association ceases 
to exist. They keep no records of their proceedings ; 
the names of their leaders are sedulously concealed ; and 
the regular officers of the law are often, in the discharge 


of their duty, brought into open collision with the 
lynchers. The utmost that may be said for them is 
that they often, though unintentionally, compel better 
administration of the laws; but, on the whole, lynch- 
law is manifestly selfish, cowardly, passionate, un- 

In every important particular, the organizations of 
the typical mining-camps, which we have been consider- 
ing, offer sharply outlined contrasts. Camp-law has 
never been the enemy of time-tried and age-honored 
judicial system, but its friend and forerunner. Axe of 
pioneer and pick of miner have levelled the forests, and 
broken down the ledges of rock, to clear a place for the 
stately structures of a later civilization. Rude moun- 
tain courts, rude justice of miner-camps, truth reached 
by short cuts, decisions unclouded by the verbiage of 
legal lexicons, a rough-hewn, sturdy system that pro- 
tected property, suppressed crime, prevented anarchy, 
such were the facts ; and on these, frontier government 
rests its claims to recognition as other than mob-law, 
and better than passionate accident. 

Later illustrations of vigilants-justice than those of 
California can readily be found. When, after a reign of 
terror almost unexampled in American frontier history, 
the tried and true miners arid merchants of Montana 
organized during the winter of 1863-64, and in a few 
weeks hung twenty-four desperadoes and murderers, 
they performed a solemn duty laid upon them as Ameri- 
can citizens. The present peace, order, and prosper! ty 
of that empire in the high Rockies, the "land of the 
silver bow," as its children love to call it, are the 
result of this acceptance of weighty responsibilities. 
Not until nearly a hundred persons had been waylaid, 
robbed, and slain, in various parts of the Territory, by 


members of a fully organized band of assassins, did 
society accept the challenge, and supply the absence of 
civil authority with the military firmness of the Vigi- 
lantes. It is a matter of history, that this organization, 
like that of San Francisco, never hung an innocent man, 
and that, when its work was done, it quietly disbanded. 
In studying the nature of the mining-camps of" Cali- 
fornia, we are irresistibly compelled to think of the 
whole race of American pioneers, from the days of 
Boone and Harrod to the days of Carson and Bridger ; 
heroic forest chivalry, heroic conquerors of the prairies, 
heroic rulers of the mountain wilderness, ever forcing 
back the domains of savage and wild beast. Well did 
one of the most eloquent of American lecturers once 

" Woe to the felon upon whose track is the American borderer ! 
Woe to the assassin before a self-empanneled jury of American 
foresters 1 No lie will help him, no eloquence prevail ; no false 
plea can confuse the clear conceptions or arrest the just judgment 
of a frontier court." J 

When the pioneers of the newer West pushed into 
California, adding the leaven of such ideas to the mass 
of ancient Spanish civilization ; when youth and energy 
from older communities of the Atlantic States, and 
adventurers from every land under the sun, joined in 
the famous gold-rush of 1849, the marvel of marvels 
is, that mob-law and failure of justice were so infrequent, 
that society was so well and so swiftly organized. 

1 Dr. John C. Lord, lecture on " Land of Ophir; " delivered in 
Buffalo, February, 1849. 



HERETOFORE we have considered only the appear- 
ance, general government, and criminal procedure of 
the early mining-camps; but there is a broad field of 
special mining-jurisprudence as yet comparatively un- 
touched, and that, also, the field of most permanent 
value and greatest historical interest. The civil regu- 
lations of the miners were more varied and numerous 
than their criminal codes ; and, reduced to their primary 
significance, they were " land-laws of the frontier." 

It is difficult to express the supreme importance of 
laws which govern the ownership of land. The social, 
economic, and political history of the human race has 
turned upon the pivot of changes in systems of land- 
tenure; and here is a battle-ground of the future, as of 
the past. Nothing which serves to illustrate the work- 
ings of any land-system, or of any method by which 
lands were actually held in any community, can ever 
be called irrelevant or worthless ; for the entire field of 
study is so broad, and broken into so many angles, that 
each ray of light is needed. Earnest students have 
explained the prominent features of the land-system of 
the ancient Germans, and have followed its history to 
the present time : they have told us how the primitive 
equality of the Mark system gave way in some remote 
past to the allodial system of village life, mid how the 



holdings of lands in common yielded slowly to rights of 
separate ownership and inequality of estate, until thus 
the foundations of royal families and of feudal duties 
were laid. The ownership of land among the Saxons 
of the fifth century "was the outward expression, rather 
than the basis, of political freedom," so Mr. Stubbs tells 
us, " and in itself a usufruct rather than a possession." 
Landed property in England before the Norman con- 
quest was of four distinct kinds, the folk-land, belong- 
ing to the nation ; the common-land, held by communities, 
as it is still held under the Russian Mir system, by the 
villagers of India, and in the pueblos of New Mexico ; 
the heir-land, which had become partially alienated from 
the common-lands, and could pass by will, perhaps by 
purchase, with the consent of all the members of the 
community ; lastly, the book-land, with its full and sepa- 
rate ownership, under a grant from king and witan. 
At last the hereditary freemen of the township became 
the tenants of the lords' manor, and the modern system 
of individual ownership of land was ultimately devel- 

Now, the study of the mining-camps of the Far West 
reveals the presence of primitive Germanic ideas more 
clearly in their land-laws than in any other department 
of their jurisprudence. The rights of the individual 
over land were strictly subordinate to the rights of the 
camp, for use was made the proof of ownership. Then, 
also, the legislative enactments of the mining-camp 
clustered with peculiar force about the central question 
of land-tenure ; and a large body of laws was thus 
created, setting forth with great exactness the size of a 
claim, the conditions under which it could be held, the 
circumstances which would work its forfeiture, and the 
methods of settling disputes in reference to its possession. 


Moreover, the establishing of district land-laws led in- 
evitably to meetings of the miners of many districts, 
who harmonized their diverse district codes into one 
which should be binding upon all the miners within the 
county, a still further step in institutional progress. 

The claims of each district were numbered and re- 
corded, and their size was according to local regulation. 
The miners' meeting, when sitting to decide upon ques- 
tions of this sort, was in fact like a local legislature, 
or a committee of the whole. It decided how many 
claims a person could hold ; how much work he had to 
do upon each one to retain possession ; what forms of 
conveyance were requisite ; what relative rights and 
duties the owners of adjoining claims had ; what consti- 
tuted abandonment of a claim ; in what manner riparian 
rights could be secured and maintained ; lesser regula- 
tions about water-supply ; rights of, or restrictions upon, 
aliens in the camp ; and hundreds of cognate subjects. 
It could levy assessments for general or particular ex- 
penses of the camp as a body corporate, and could at 
any time adopt such new regulations as seemed desir- 
able for preserving and protecting private rights. And 
these powers of the miners' meeting, or of committees, 
or officers appointed by them, lasted long after the 
State was organized. 

In each new district, the framing of local mining- 
laws became the most important legislative duty of 
the miners. The laws of the hundreds and thousands 
of camps that grew and decayed in the Pacific-coast 
region, differing though they did in many particulars, 
all agree in recognizing discovery and appropriation of 
mineral property as the source of title ; and develop- 
ment by use and working, as the condition of continued 
possession. This acceptance of the law of equal owner- 


ship in the gifts of nature deserves more than a passing 
notice. Probably every man in the gold-region had 
been educated in the doctrine of individual ownership 
of land: yet this instinctive return to first principles, 
this adoption of the ancient idea of " free mining-lands," 
common to all as once the woods and fields and pastures 
of England were common, will ever prove an attractive 
theme for students of historical and social topics. 1 

That mining-claims should become a subject of specu- 
lation, of sale and purchase, of transfer from owner to 
owner, seems to have been foreign to the views of the 
earliest placer-miners of California ; and in some camps 
a man who sold his claim could not take up another. 
But it was not long before claims were everywhere 
acknowledged as real-estate property, held by " miners' 
title;" and the process of perfecting minor regulations 
went on with great rapidity. For all this, the miners' 
sole and all-sufficient plea was " imperious necessity ; " 
and so thoroughly did they accomplish the work of 
creating a land-law, that until a comparatively recent 

1 Mr. Henry George, in his Progress and Poverty, writes: 
"For the first time in the history of the Anglo-Saxon race, these 
men were brought into contact with land from which gold could he 
obtained by the simple operation of washing it out. . . . The novelty of 
the case broke through habitual ideas, and threw men back upon first 
principles; and it was by common consent declared that this gold- 
bearing land should remain common property, of which no one might 
take more than he could reasonably use, or hold for a longer time than 
he continued to use it. This perception of natural justice was acquiesced 
in by the general government and the courts; and while placer-mining 
remained of importance, no attempt was made to overrule this reversion 
to primitive ideas. . . . Thus no one was allowed to forestall or to lock 
up natural resources. Labor was acknowledged as the creator of wealth, 
was given a free field, and secured in its reward. The device would not 
have assured complete equality of rights under the conditions that in 
most countries prevail; but under the conditions that there and then 
existed, a sparse population, an unexplored country, and an occupa- 
tion in its nature a lottery, it secured substantial justice." 


date the titles to all the mining-property of the newer 
States and Territories has rested upon these local laws 
and miners' enactments. 

We therefore proceed to a minute analysis and com- 
parison of the land-laws and consequent regulations by 
which mining-camps were and are governed. We have 
taken the laws actually enforced for a period of years 
in many of the leading camps of various States and 
Territories; sometimes abbreviating their enactments, 
but omitting nothing essential to a full understanding 
of the subject. The laws in their complete form are 
usually concise, well-worded, and clear in meaning. In 
some cases they were evidently drawn up by lawyers ; 
in other cases, by persons of good general education, 
but as evidently ignorant of law. The period to which 
they refer ranges from the summer of 1848 to the close 
of 1884. 

As regards the important question of the number of 
mining-districts which have been governed by local 
laws of their own devising, the United-States Reports 
on Mineral Resources state that in 1866 there were 
over five hundred organized districts in California, two 
hundred in Nevada, and one hundred each in Arizona, 
Idaho, and Oregon. There were, perhaps, fifty each in 
Montana, New Mexico, and Colorado. Here is a total 
of more than eleven hundred camps in the Far West, 
as late as 1866. Since then the number of districts has 
diminished in the older mining-regions, and increased 
in the newer ones ; but State and National legislation 
has in a great degree restricted the field for local enact- 
ments. The number of actual placer-camps in Cali- 
fornia during its " flush period " is not recorded ; but it 
could not have fallen below five hundred, and probably 
exceeded that figure. Mining was carried on vigorously 


in twelve large counties, and to some extent in three 

The first camp to which we shall invite the attention 
of our readers was situated five miles from Sonora, the 
county-seat of Tuolumne County, Cal., and was in one of 
the richest ravines known to the early miners. It bore 
the homely appellation of "Jackass Gulch" from the 
days of its first organization in 1848, but its earliest 
laws were not committed to writing. A square of ten 
feet of ground " often yielded ten thousand dollars from 
the surface dirt," and ten feet square was the maximum 
size of the claim allowed. After 1851 the laws, as 
adopted and enforced by the camp, were as follows : 

" First, That each person can hold one claim by virtue of occu- 
pation, but it must not exceed one hundred feet square. 

" Second, That a claim or claims, if held by purchase, must be 
under a bill of sale, and certified to by two disinterested persons 
as to the genuineness of signature and of the consideration given. 

" Third, That a jury of five persons shall decide any question 
arising under the previous article. 

" Fourth, That notices of claims must be renewed every ten days 
until water to work the said claims is to be had. 

" Fifth, That, as soon as there is sufficiency of water for working 
a claim, five days' absence from said claim, except in case of sick- 
ness, accident, or reasonable excuse, shall forfeit the property. 

" Sixth, That these rules shall extend over Jackass and Soldier 
Gulches, and their tributaries." 

The greatly lessened value of the mining-ground is 
shown by the size of the claim being increased from 
ten feet square to one hundred feet square. Require- 
ment of claim-notice renewals during the idle season 
was common in most of the camps, unless a miner lived 
upon his claim. Thriving though the camp was in 
1851, still crowded with miners by the hundred, it was 
rapidly exhausted ; and in 1856, according to the Tuo- 



lumne Directory of that year, had only twenty-two 

Springfield District, whose leaders were men of New 
England, trained in town-meetings and local self-gov- 
ernment, was able to create an organic law far superior 
to that of the preceding camp. Its laws were adopted 
in written form at a mass-meeting of the miners, April 
13, 1852 ; were revised Aug. 11, and again Dec. 22, 1854. 
After describing the boundaries with great minuteness, 
the preamble (of 1852) declares 

" That California, is and shall be, governed by American prin- 
ciples ; and as Congress has made no rules and regulations for the 
government of the mining- districts of the same, and as the State 
legislature of California has provided by statute, and accorded to 
the miners of the United States, the right of making all laws, rules, 
and regulations that do not conflict with the constitution and laws 
of California, in all actions respecting mining-claims ; therefore 
we, the miners of Springfield District, do ordain and establish the 
following rules and regulations." 

There are sixteen articles. The size of the claim is 
fixed at one hundred feet square, no person under any 
circumstances to hold more than one ; work must be 
performed upon it at least one day out of three during 
the season for mining. Claims must have substantial 
stakes at each corner, and must be " registered and de- 
scribed in the book of the precinct registry," to which 
the owner or owners shall sign their names. Several 
persons, each owning a single claim, may concentrate 
their labor upon one of those claims. 

Disputes are to be referred to a standing committee 
of five miners, or to any member or members of this 
committee, as arbitrators; or a miners' jury may be 
summoned. Each member of the standing committee 
shall in each case be paid two dollars for his service. 


It is easy to see that a single arbitrator was in many 
cases entirely satisfactory for both disputants. The 
laws proceed to further define the process of arbitra- 
tion. The head of the committee is to be sworn by a 
justice of the peace, provided such an officer be ap- 
pointed in this mining-district, and is to administer the 
oath to his associates and to the witnesses. In some 
of the early camps, the alcalde administered this oath 
" to honestly arbitrate," to his deputies. The decision 
arrived at in either jury-trial or arbitration must be 
received as conclusive and binding upon the parties 
thereto, and be deemed and considered final in all such 
cases. Either party may compel the other to come to 
trial, by giving three days' notice of time and place. 
Costs shall be paid in the same way as in magistrate's 
courts. Disputes over water-privileges are especially 
named for arbitration. 

Thirty days' desertion of a claim during the working- 
season results in forfeiture without remedy. 

Article thirteen reads as follows : 

" No person not an American citizen, or where there is a rea- 
sonable doubt of his being entitled to the privileges of an American 
citizen, shall be competent to act on any arbitration, or trial by 

The next article provides that " companies which go 
to. great expense running tunnels " are allowed " two 
claims for each member of the company." The first 
code of " tunnel-claim laws " adopted in this region was 
several years later, Jan. 20, 1855 ; and it defined a 
legal tunnel-claim as " one hundred feet along the base, 
and running from base to base through the mountain." 

Article fifteen provides for the election of a district 
recorder, who is to have fifty cents for recording the 
title of each mining-claim. 


The last article provides that "all claims held by 
foreigners who have failed to secure their State license " 
shall be forfeited. This was to aid in the enforcement 
of the State Act of April 13, 1850, passed at San Jose*. 
A list of the unnaturalized foreigners was to be kept 
in each county. The recorders of the different districts 
usually aided in its preparation. 

These laws of Springfield District show plainly how 
much dependence was placed upon the arbitration or, 
as the Spanish termed it, the conciliacion plan. We 
shall find equal care in this regard in many other dis- 
tricts. Springfield is said to have been the first dis- 
trict in the Sierra Nevada that built a church before it 
built a gambling-house. It has remained an orderly, 
flourishing, and energetic community, since the days 
of its first organization. 

Jamestown District, settled in August, 1848, by South- 
ern and Western men, was regulated by miners' meet- 
ings assembled every six months, and sometimes holding 
special meetings to consider particular cases. In 1853, 
several persons having attempted to pass unpopular 
laws, the miners held a rousing assembly, repealed 
"all previous laws, of every sort whatever," enlarged 
the boundaries of the district, adopted the usual stand- 
ard size for claims, one hundred feet square, and 
declared that all claims secured under former laws were 
publicly acknowledged as legal. 

In this district, within three days from the time of 
location, a claim must have a ditch one foot wide and 
one foot deep cut about it : notices must also be posted, 
and stakes driven at the corners. Failure to work a 
claim within six days after the mining-season begins, 
causes its forfeiture. A miner can hold other claims 
only upon proof of purchase. Miners shall have the 


use of water from the ditches according to the date and 
situation of the location of their claims. 

An important clause is to the effect that miners may 
dig up any farm, or enter within any enclosure, by giv- 
ing the owner security that they will pay all damages 
inflicted. In no case, however, shall they dig within 
twelve feet of a building, or obstruct the entrance. 
Payment of damages meant only compensation for grow- 
ing crops and improvements. 

Shaw's Flat District required the claim to be " in one 
lot, and square in form." A notice would hold a claim 
for ten days after the season began. Part of a com- 
pany could not " hold the claims of a whole company 
during the absence of a part of its members." Claims 
in "deep-diggings," where pay-dirt is twenty-five feet 
or more below the surface, may be laid over without 
work from Dec. 1 to May 1, if they are well defined 
by marks and notices, and recorded in the district re- 
gister, which shall always be open to inspection. For 
some years there was an annual meeting to revise the 
district law, besides several meetings called by the chair- 
man when it seemed desirable. 

The laws of Sawmill Flat, Brown's Flat, Mormon 
Gulch, and Tuttletown districts present many points 
of resemblance. Two of them begin by saying, 

" Whereas, This district is deficient in mining laws and regula- 
tions, and disputes have arisen : therefore we, the miners of 

district, in convention assembled, do pledge ourselves to abide by 
the following laws." 

In three of the districts named, the laws provide that 
the discoverer of new diggings shall be allowed to hold 
twice the usual amount of mining-ground. 

The laws of Sawmill Flat provided for a committee 
of three persons, elected by the miners, to call meetings 


of all the miners of the precinct, either to enforce the 
laws, or whenever, for any reason, they deem such meet- 
ing necessary. The arrangement for arbitration is as 
follows : 

" Whenever any dispute shall arise respecting claims or water- 
privileges, each party shall choose two disinterested persons ; the 
four thus selected shall choose a fifth ; and the five thus selected 
shall hear evidence according to the laws of this precinct." 

The law of Brown's Flat provided that " all arbitra- 
tors shall be appointed by the committee" of three 
which then governed the camp. They were to be five 
in number; and were to "examine all disputed terri- 
tory, hear testimony, and decide accordingly." This 
governing committee of Brown's Flat was elected " to 
hold office until superseded." It was the court of ap- 
peals in cases where the arbitrators failed to satisfy the 
parties. Its members were paid " wages for summoning 
the arbitrators, and for other duties ;" but the amount 
is not named. 

The Tuttletown laws say, " No person shall hold more 
than two claims, either by purchase or otherwise." They 
also provide that any one who destroys a notice or claim- 
stake shall be fined not less than five dollars nor more 
than fifty dollars. Notices of discontinuance of work 
on deep claims during winter are to be posted in 
some convenient and public place in the district. 
Tuttletown was so named because Mr. Tuttle, after- 
wards first county judge of Tuolumne, built and occu- 
pied the first cabin there. The miners of the district 
organized a water-ditch company in June, 1851, and 
carried their enterprise to a successful termination. 
Mormon's Gulch and Brown's Flat were first mined in 
1848. Sawmill Flat became a great resort of Mexicans, 
Chilenos, and Peruvians, in 1850-51. Joaquin Muri- 


etta, the notorious outlaw, was a monte-dealer there in 

Yorktown, Poverty Hill, and Chili camps had similar 
laws; and these pioneer camps were organized early 
in 1849. The first and last were settled by Mexicans 
and Chilenos, but Americans soon ruled all three. At 
Yorktown, within a month after its discovery, the Amer- 
icans and other miners met, " and elected P. Cutrell for 
alcalde, and Mr. Rochette (better known as ' Frenchy ') 
for sheriff," under whose administration the district was 
governed well and quietly. The alcalde system was re- 
tained in its main features until superseded by county 
organization. In these districts, the miners assembled 
to pass legislative enactments; but they only referred 
to size of claims, and possession thereof, not in any case 
to " arbitration," because that was one of the alcalde's 
most important duties. The camp-laws limited " deep- 
diggings " to claims " of thirty feet square on unworked 
ground, and to fifty feet square on previously worked 
ground." A claim of sixty feet square was set apart 
for the discoverer of a placer. A claim must be worked 
within three days after staking it out, and placing a 
claim-notice upon it. Ten days' absence in the work- 
ing season subjects it to forfeiture, and throws it open 
to re-location as an abandoned claim. 

Chinese Camp also had an alcalde system ; and its 
laws, passed at a miners' meeting Sept. 17, 1850, were 
in operation for many years, without change. The 
alcalde elected at this meeting had "power to decide 
upon all disputed claims ; " his fees were fixed at three 
dollars for his decision, and a dollar a mile for travel- 
ing expenses from the central point of the camp to the 
disputed claims, and return. The legislative enact- 
ments of the district confirmed all claims " as made by 


the present settlers ; " confined all future claims to 
" twenty feet square ; " and required a ditch two feet 
wide and one foot deep to be dug about each claim, 
" unless prevented by rock or clay," in which case the 
removal of the surface-soil and the erection of corner- 
stones was considered sufficient. In this district, Isaac 
Caps was the first alcalde, and S. E. Chamberlain the 
first sheriff. 

The laws of Gold Spring Camp presented some 
features differing materially from those of other dis- 
tricts in the region. Claims must be worked one day 
in every seven. Arbitrators were " earnestly recom- 
mended," but not made essential. Miners were com- 
pelled to make a new road if they destroyed the old 
one in their operations. This is often a bone of much 
contention in mining-districts. Gold Spring Camp had 
a population of about eight hundred, and was ruled in 
1850 by an alcalde ; in 1854 the population was five 
hundred. The gold of this district minted more than 
that of any other of the early diggings. 1 

Columbia District was always a large and important 
one, including several lesser camps, such as Yankee 
Hill, where many fine nuggets, one weighing twenty- 
three pounds, were found in the early days. The his- 
tory of this camp was highly characteristic of the 
mining-era. March 27, 1850, five prospectors all 
New-Englanders, and three, at least, from the woods of 
Maine camped beside a gulch, and tested the gravel. 
To their delight it was found that they could make 
eight or ten ounces a day to the man, though water was 

1 Gold-dust, which at first passed at uniform rates in the mines, and 
in San Francisco, at one time falling to seven dollars per ounce, was 
carefully tested by the express companies ; and they found that it ranged 
in value in different localities, from $14.50 to $19.50 per ounce. 


very scarce. They named the place Kennebec Hill, 
and proceeded to wash gravel with their utmost energy, 
knowing that others would soon find the gulch. Within 
a week, another prospector joined them, and succeeded 
in taking out two pounds and a half of gold-dust 
during his first day's work. Within thirteen days from 
the time the five original prospectors camped on Ken- 
nebec Hill, there were eight thousand miners in the 
new town. Many gamblers came with the crowd ; and 
at one time there were not less than a hundred and 
forty-three monte and faro banks in operation, the funds 
of which were nearly half a million dollars. Men were 
often seen to turn a card for three or four thousand 
dollars, sometimes for several times as much. It was 
one of the most rapid developments of a great and 
prosperous mining-camp ever known in California. 

Within a fortnight, the need for some system of gov- 
ernment was manifest. A public meeting was called to 
talk up the subject ; but nothing in particular was done 
except to give the camp a name, Columbia. Two or 
three days later, at another and much better attended 
mass-meeting, Major Sullivan was chosen alcalde, and 
allowed fees collected from registry of mining-claims. 
June 1 the new State tax on foreigners was enforced, 
and the population decreased greatly. In 1852, 1,229 
votes were polled in the district. 

The points in the mining-law in Columbia, which 
differed from those previously noted, were as follows : 
Full regulations respecting "dry-diggings," and gold- 
bearing earth thrown up in heaps to remain till winter 
rains, such heaps being held to be private property ; 
full regulations to prevent persons from diverting water 
flowing naturally through gold-bearing ravines, from its 
course, without the consent of all parties interested ; the 


presence on a claim of tools, sluice-boxes in condition 
for use, or other mining-machines, accepted as prima- 
facie evidence of occupation. 

There are no regulations for arbitration, that being 
one of the alcalde duties in this camp. The alcalde 
appointed jurors in civil cases when asked for. The 
other officers were sheriff and recorder ; and the sheriff 
chose his own assistant, or selected a posse whenever 
thought necessary. Recorder-fees were at first a dollar, 
but afterwards fifty cents. 

But far the most important sections of the Columbia- 
District law were as follows : " Neither Asiatics nor South- 
Sea Islanders shall be allowed to mine in this district, 
either for themselves or for others." " Any person who 
shall sell a claim to an Asiatic or South-Sea Islander 
shall not be allowed to hold another claim in this dis- 
trict for the space of six months." " None but Ameri- 
cans, or Europeans who intend to become citizens, shall 
be allowed to mine in this district, either for themselves 
or others." These laws were in full operation in 1856, 
when Columbia had more than five thousand inhabit- 
ants. 1 

Montezuma Camp, Tuolumne, allowed "three squares, 
of a hundred feet each," to constitute a surface claim ; 
a hundred and fifty feet in width was a " tunnelling- 
claim ; " a hundred feet wide by three hundred feet long 
was a deep-sinking claim. All shaft-claims must be re- 
corded within one week after location, and must receive 
three full days' labor each week. The recorder was 

1 In 1854 the town was incorporated. In 1855 the miners were anx- 
ious to aid the progress of a water-company's ditch; and three hundred 
or more of them took their picks, and gave several weeks' work to the 
enterprise. This company, in ten months, constructed forty-four miles 
of canal and fluming, and supplied twenty-five square miles of mining- 


elected "for one year, and until his successor is chosen, 
unless dissatisfaction occurs : " then the miners of the 
district "may call a special meeting, and by a two-thirds 
vote declare said office vacant, arid proceed to elect his 
successor." Arrangements are made for an annual meet- 
ing, called by the recorder. His fees are a dollar for 
recording each claim, and a dollar for each arbitration. 
He presides over the arbitration court, which consists 
of two miners chosen by each of the disputants. If 
either party refuses to choose arbitrators, the two others 
and the recorder shall decide ; and their decision is final. 

Jacksonville Camp allowed for a claim fifty feet in 
width on the diver, and extending from the centre of 
the stream to the adjacent mountain ; in the small ra- 
vines, three hundred feet constituted a claim, one hun- 
dred and fifty feet on the flat, and sixty feet in certain 
deep-diggings. Fifteen days' idleness in the working- 
season destroyed dTCim-rights. In Garote District, fifty 
yards up and down the creek were allowed, and seventy- 
five yards on neighboring gulches. 

In 186 the mining-laws of French Camp, Stanislaus 
County, then called La Grange, contained the fol- 
lowing, after providing for arbitrators : " In the event 
of any of the disputing parties not acknowledging the 
decision, then the miners of this district will assem- 
ble, and compel said party to recognize the umpire's 

The Sweetland mining-district, Nevada County, was 
organized in 1850, claims then being thirty feet square. 
Two years later the privilege was increased, and claims 
of eighty by a hundred and eighty feet allowed. In 
1853 the miners met, and subdivided the district into 
three ; and different regulations were adopted in each. 
North San Juan, one of these districts, and long the 


great hydraulic-mining centre of California, provided, 
in its earlier code, for " one claim by location, and an 
unlimited number by purchase. The claim-notice must 
be renewed every thirty days, unless obviated by the 
daily presence of the owners or their representatives." 
An expenditure of five hundred dollars in prospecting 
or opening up a claim secures it for two years. A re- 
corder was to be elected annually by the miners, with 
the usual fees ; arid each sale or transfer was to be placed 
on record within a week. 

Pilot Hill, Calaveras County, passed laws about 1855, 
to the effect that each " gulch-claim " should be a hun- 
dred and fifty feet long, and fifty feet wide ; each " sur- 
face-claim," two hundred feet by a hundred feet; and 
each " tunnel or shaft claim " should be a hundred feet 
in width, and extending through the hill. On the last 
class of claim, work to the value of twenty-five dollars 
per week is required from each company. "Occupa- 
tion and use " is required of the owners of the other 
species of claims. 

New Kanaka Camp, Tuolumne County, allowed, in 
1858, "creek-claims" of two hundred feet in width, and 
from bank to bank ; also " gulch-claims," of one-fourth 
that size ; and " bar or flat " claims, of twenty feet in 
width and fifty feet in length. Work must be done 
" one full day in three, unless the owner is sick or on a 
jury." On this point, the law of a little Trinity-county 
camp in 1854 said with grim humor, "and a physician's 
certificate is needed ; " there being at that time but one 
or two medical men in the county, and none at all in 
that particular camp. New Kanaka furthermore or- 
dained that each miner might hold one claim by pre- 
emption, and one by purchase, but no more. The 
Chinaman was shut out ; " not allowed to own, either 


by purchase or pre-emption." All disputes were left to 
three arbitrators, who " must be paid at the rate of three 
dollars per day for their time." One curious item was, 
that the elected recorder should number each claim 
registered, and himself attach to a claim-stake, in the 
presence of witnesses, a piece of tin bearing that num- 
ber. The laws of Copper-Canon District, Calaveras 
County, were similarly exact on this point; requiring 
the recorder to visit each claim, and examine its bounds. 
One of the most remarkable instances of definite 
regulation of the " legal representation " of miners at 
all meetings was that afforded by Brown's Valley Camp, 
Yuba County. The miners of this place appear to have 
been sufficiently energetic ; for we find them, early in 
1853, assembling, and repealing a " previous arbitrary 
and oppressive set of laws to-day revoked by common 
consent." They met again Aug. 8, and resolved, 

" That each claim shall be entitled to a vote in the miners' meet- 
ings of this district by the proper owner, or may be represented by 
a power-of-attorney from the proper owner, specifying the object 
of that power, and its limitation." 

These meetings were semi-annual, and claims not repre- 
sented were declared to be forfeited. This code was in 
full force until 1864, and many of its provisions lasted 
until a few years ago. 

/ Examples of kindred regulations might easily be 

( quoted from the laws of placer-camps in California. 

\ We have before us notes from pioneers upon the codes 
bf Cherokee, Nimshew, Bangor, and Forbestown camps, 

( in Butte County ; i>f La Porte, Hungarian Hill, and 
Grizzly Creek, in Plumas County ; of Port Wine, Forest 
City, Monte Cristo, and Downieville, in Sierra ; of Slab- 
town, Tiddletown, and Volcano, in Amador ; of Mount 
Ophir, Blue Gulch, Peuon Blanco, and Horseshoe Bend, 


in Mariposa ; and of many other camps once famous, 
but now lost in oblivion. None of them present im- 
portant variations from those already described. The 
laws of Mud Springs, El Dorado County, as late as 1863 
provided for the use of arbitrators; and Georgetown 
Camp in 1866 clung to many of the primitive forms. 
In 1868 each district in Placer County had its own 
rules, and little uniformity was manifest. 

A claim-notice posted in San Andreas District, Cala- 
veras County, in 1862, was as follows : 

NOTICE. The Undersigned claims this ground for mining-pur- 
poses, known as the Robert McCall Claim, being a deep or shaft 
claim, and bounded on the northwest by the Gilchrist & Cornwell 
Claim, & on the southeast by the Plug-Ugly Claim, and he in- 
tends to work it according to the laws of the San Andreas Mining 


JOHN SKO WALTER, Recorder, ^.ug. 18. 

Another notice found by the writer over a deserted 
claim in Shasta County, a few years ago, was of a much 
more primitive type, and read after this fashion : 

NOTIS: To all and everybody. This is my claim, fifty feet 
on the gulch, cordin' to Clear Creek District Law, backed up by 
shotgun amendments. 

(Signed) THOMAS HALL. 

A few quotations from other " claim-notices " that 
were in their time accepted as " good and sufficient " 
may perhaps be pardoned. One man wrote : " TAKEN. 
This is my Honest Claim of Ten feet each way." 
Another : " To MINERS. Look further. Respect my 
claim stakes driven by the rules of Douglas Bar." Still 
another grew combative with his " CLAME NOTISE. 
Jim Brown of Missoury takes this ground ; jumpers will 
be shot." Some camps prescribed the proper size for 


the "notice," and that it "should be written in ink," 
others required it to be "painted or cut on wood;" and 
it was often boxed, or otherwise protected from the 
weather. One camp described the legal claim-stake as 
four feet high and five inches square. There was evi- 
dently a great deal of honest attention paid to details 
of this sort. 

All the laws we have hitherto described are those of 
placer-districts where mines were worked at compara- 
tively little cost, except when tunnelling was required. 
But the first quartz-mining began in 1850-51, near 
Oroville ; and the necessity of having laws by which to 
regulate the size of quartz-claims, and their tenure, was 
at once manifest. The miners soon took steps to enlarge 
their code, and extend it to county jurisdiction. Late 
in 1852 the miners of the various districts of Nevada 
County held a meeting at which there was a full dis- 
cussion of the subject, and a free interchange of opinion. 
A committee was appointed to report at another meeting, 
called for Dec. 20, at which time a convention of the 
quartz-miners from all the districts of the county was 
held at Nevada City. The laws' they adopted at this 
meeting were still in force in 1881, and have served as 
the regulations of all the quartz-mining of that region. 
They carry the force of law, and have sustained various 
judicial decisions. The jurisdiction of these laws was 
declared to be "over all quartz mines and claims in 
Nevada County." The extent allowed to a claim was 
"one hundred feet on the ledge," including "all dips, 
angles, and variations," or, as later laws read, " all dips, 
spurs, and angles." The discoverer was entitled to two 
hundred feet. The marking and staking of a claim 
must be done within three days, and the recording 
within ten days ; and within thirty days, work to the 


cost of one hundred dollars, or twenty full days' labor, 
must be done, and the same repeated each year to hold 
the claim, until a company is fully organized, and has 
a mill worth five thousand dollars " contracted for in 
good faith." The recorder may then give the company 
a title-deed to the mining-property, guaranteeing posses- 
sion and proprietorship forever. Failure to comply with 
this provision about the quartz-mill, ultimately works 
forfeiture. Any citizen of the United States can take 
up one quartz-claim, and may also hold " all that he 
purchases in good faith." The regular county recorder 
of Nevada County was to serve as mining-recorder in 
the matter of quartz-claims. His deputy was to be 
elected by the district. 

The Sacramento-County miners assembled in 1857, 
and passed laws that were in force until after 1868. 
They required twenty days of work per year on each 
quartz-claim ; the work when done " to be examined by 
the recorder of the local district," and a certificate 
given. Whenever a quartz-mill worth five thousand 
dollars has been contracted for in good faith, the com- 
pany is entitled to receive a permanent title-deed to 
the lands from the county recorder. Only citizens, or 
" those who have declared their intentions of becoming 
so," are entitled to hold claims. About 1855 the 
miners of Sierra County formed a code, requiring 
work to the value of a hundred dollars per year, allow- 
ing " foreigners who pay their miners' tax " to hold 
claims, and limiting the size to two hundred feet on the 
lode, by a total width of five hundred feet. In 1858 
the miners of Tuolumne County assembled, and made 
uniform laws for the quartz interests. 

At the present time most of the counties in the State 
have held " miners' meetings," at one time or another, 


to regulate the interests of the owners of quartz-lodes. 
There was a plan suggested, some time before 1860, for 
a State convention of delegates from all the mining- 
districts of California, to formulate a general mining- 
code ; but the need was not sufficiently felt at that time, 
and Congressional action a few years later rendered 
such a convention useless. No student of the life of 
the camps, however, can deny that the full possibility 
of a State-wide organization existed. 

Enough has been said to show how exact and definite 
were the California camp-laws which regulated property 
rights. They dealt in a practical manner with river 
and placer mine-rights, with cement and deep-gravel 
rights, with tunnel and water-ditch rights, and with 
leads, ledges, and lodes of every description. These 
laws thus created became the common heritage of the 
entire body of American miners, and were in a few 
years adopted by camps in far-distant regions. 

In the Territory (now the State) of Nevada, Virginia- 
city District adopted its first code Sept. 14, 1859. 
Quartz-claims were to be two hundred feet on the lead, 
including "dips, spurs, and angles." Three days of 
work were required each month. Each quartz-claim 
was to receive a name, and to be recorded within ten 
days. " Hill and surface " claims might be a hundred 
feet square. " Ravine and gulch " claims were to be a 
hundred feet wide, and extend " from bank to bank." 
Claims of every sort were forfeited if not worked. The 
recorder, elected for one year, should hold his book 
" subject to inspection," and should post copies of the 
district-laws in two conspicuous places within the 
camp. Reese-river District in 1864 extended twenty 
miles north and south. Its laws were numerous and 
definite. A written notice signed by fifty claim-owners 


could at any time be called to depose the recorder. 
That officer's fees were one dollar ; and he could appoint 
deputies, since the district was so large. The written 
application of twenty miners would at any time call a 
special district-meeting. 

The regulations of the famous Alder Gulch in Mon- 
tana, the richest for its size that has ever been found, 
were adopted in miners' meeting, Sept. 16, 1864, and con- 
sisted of two articles in thirty-one sections. They were 
draughted by a select committee chosen by the miners 
in open "folk-moot;" and were approved in like man- 
ner, clause by clause, after free discussion. The officers 
of the district were president and secretary. We have 
now passed beyond the utmost limits of the alcalde and 
the " government by committee " systems. A written 
application of five claim-owners was sufficient to call 
a special meeting. Much space is devoted to riparian 
rights, laws of trespass, and flume ownership. Tailings 
must not be permitted to accumulate on another miner's 
land. Bar-claims, creek-claims, hill-claims, and other 
classifications are mentioned. Three days per week is 
the work-requirement. All in all, it is a highly organ- 
ized and definite code, and shows the influence of 
experienced miners from Idaho, Colorado, and Cali- 
fornia. The growth of Montana was marvellous. Be- 
fore 1867 twenty-five hundred mineral-lodes were 
prospected and recorded in the Territory. In Confed- 
erate Gulch, in 1866, three miners are said to have 
taken out four hundred and forty-one thousand dollars 
from a claim three rods square. Montana miners in 
1865-70 founded dozens of new camps, even as far 
north as the Saskatchawan. 

We must turn to the later manifestations of law in 
single mountain camps, organized by Americans. In 


the autumn of 1883, away up in the northern corner of 
Idaho, the Coeur d'Alene placers were discovered, south 
of Lake Pend d'Oreille, in fastnesses of the North 
Rockies that romance and tragedy have made their 
own. The mining excitement that followed was enough 
to revive the most vivid memories of 1849. From New 
Mexico, Arizona, Colorado, California, hardy prospect- 
ors by the hundred started for Spokane and Rathrum, 
the gateways of the region. They surged in from 
Minnesota, from Puget Sound, from Winnipeg and the 
Assiniboine, from British Columbia, and the wheat- 
plains of Dakota. Mining-papers devoted columns to 
the new mineral belt. Some doubted, some warned, 
some condemned ; but still the gold-rush continued. 

On Pritchard and Eagle Creeks, Shoshone County, 
Idaho, the first local laws of the new mines were 
adopted. It was early in March, 1884, in Coeur d'Alene 
mining-district ; and the " by-laws," as the code is 
termed, show clearly how the ideas of the earliest camp- 
laws have since been modified. 

The greatest of changes is in regard to size. All 
locations on lodes of quartz, conforming with the 
United-States mining-laws of 1872, are to be fifteen 
hundred feet in length by six hundred feet in width. 
Placer-mine claimants are allowed twenty acres, so lo- 
cated that neither length nor breadth shall exceed eighty 

Section three of the thirteen sections of this code 
introduces a new factor. It provides that authorized 
agents for capitalists may locate and -record claims for 
them. Such a thing was seldom or never heard of in 
old California days; but, as all the world knows, the 
professional prospector and locator for others is one of 
the most prominent figures in Western camps. " Give 


me a grub-slake, an' I'll locate ye a dozen good mines," 
is the appeal made to each " tenderfoot," as a greenhorn 
is affectionately termed. 

Section four allows persons to locate one claim on 
each gulch where mineral is found, and also to hold 
other claims by purchase. This also marks the growth 
of the interests of capital, and large moneyed enter- 

Section five regards assessments and claim-work. 
The first year after location, one hundred dollars of 
work must be done ; and twenty dollars each month be- 
tween June and November of subsequent years. Neces- 
sary work, such as making roads or trails, building 
cabins or other improvements, is allowed to count on 
the assessment at the rate of five dollars per day. Be- 
tween November and May, the winter-season in that 
trying climate, all claims are " laid over ; " that is, no 
work is needed to retain their ownership. 

The section relating to claims being recorded allows 
fifteen days from the date of location, evidently because 
the district is so large, and the mountain trails so steep 
and difficult to travel over, that a shorter time would 
inconvenience prospectors who wish to make long tours 
before returning to camp. 

Riparian rights, as always, receive careful attention. 
The oldest locations have first privilege of water ; but 
cannot control the surplus, nor waste the water, which 
is in every case to be returned to the channel of the 
stream for the use and benefit of those below. 

The regulation regarding company organization per- 
mits miners to unite their claims for purposes of work- 
ing them better, and to perform " all their assessments 
on one claim." This is extremely similar to the usage 
in the early California mines. 


The principle of arbitration is still preserved in almost 
its pristine exactitude. All difficulties are to be settled 
thus : " Each disputant to be allowed an equal number 
of arbitrators ; and, in case of a tie on the decision, said 
arbitrators shall have power to call in an assistant." 

Claims located prior to the adoption of these laws 
are indorsed. Changes in the district-laws require the 
written application of at least twelve miners, and ten 
days' notice of a meeting posted in three or more con- 
spicuous places in the district. Changes between the 
1st of November and the 1st of June are illegal and 
void. Previous unwritten laws are repealed. The offi- 
cers are a claim-recorder, and a chairman, who has power 
to call miners' meetings. 

Now, these rules made for the government of the 
Idaho camp of 1884 have many resemblances to the laws 
of the California camps of 1848. The thirty-six years 
between have only caused those inevitable changes that 
come from the increased capital invested in the busi- 
ness, and from the more definite State and National 
legislation upon the subject. The generic relationship 
of the earlier and the later codes is manifest. Ameri- 
can frontiersmen are ruling in Idaho, as once they 
ruled in California. 

In October, 1884, a New- York gentleman who had 
been present at a miners' meeting, Eagle-creek Camp, 
in the Cceur d'Alene, only a few months before, told 
the writer that the impression he received from it was 
that it was the true descendant of the New-England 
town-meeting, and illustrated local self-government of 
the highest order. Another gentleman recently re- 
turned from a journey to the head- waters o^ the Peace 
River, the Frazer, and the Saskatchawan, about the 
gigantic precipices of Mount Hooker, says that the 


prospectors there were forming camps, and adopting 
their local codes concerning " claims," their primitive 
land-law. The process is going on at this hour in the 
narrowing realm of the pioneer, to the north and to 
the south, along the ridge of the continent; and the 
close of this century will not see its completion. 



THE student of mining-camps and their local customs 
and enactments soon becomes interested in a class of 
problems peculiar to those districts of the West that are 
situated upon government-lands. He finds that class- 
difficulties have arisen between farmer and miner ; and 
that not merely camp-law, but the decisions of the State 
courts, have taken abundant cognizance of this fact. 
These interests, naturally helpers, he finds at times 
opposed to each other ; and he can trace the sources of 
many recent law-suits to early local legislation. 1 

Several of the district-laws quoted in the preceding 
chapter recognize the duty of " restoring roads destroyed 
in mining operations," and protect a few feet about 
a building so that it shall not fall, nor slide into the 

i Among the important decisions of early State courts, which deal 
with the relations of miner and agriculturist, are the following : Hicks 
vs. Bell, 3 Cal., 227; Irwin vs. Philips, 5 Cal., 145; Stoakes vs. Barrett, 
5 Cal., 39; McClintock vs. Bryden, 5 Cal., 97; Tartar vs. Spring Creek 
Mining Company, 5 Cal., 398; Conger vs. Weaver, 6 Cal., 556; Burdge vs. 
Underwood, 6 Cal., 45; Nims vs. Johnson, 7 Cal., 110; Martin vs. Brown, 
11 Cal., 12; Burdge vs. Smith, 14 Cal., 380; Henshaw vs. Clark, 14 Cal., 
460; Smith vs. Doe, 15 Cal., 100; Gillam vs. Hutchinson, 16 Cal., 153; 
Coryell vs. Cain, 16 Cal., 573; Lentz vs. Victor, 17 Cal., 271; Fremont 
vs. Seals, 18 Cal., 433; Rogers vs. Soggs, 22 Cal., 444; Ripley vs. Welch, 23 
Cal., 452. For mining-<^&ns cases, Woodruff vs. North Bloomfleld 
Mining Company, opinions of Judges Sawyer and Deady, printed in 
San Francisco journals of second week in January, 1884. 



gulch* At this point these local rules stop : arbitra- 
tors must decide the amount of loss in each individual 

As a matter of fact, the mining-interests were in 
those days held to be altogether predominant in impor- 
tance to the agricultural interests, over the entire gold- 
bearing area. Law was made by the miners, for the 
miners ; and this meant in practice a disregard of agri- 
cultural interests that seems unjust and short-sighted, 
until we have analyzed its causes, and comprehended 
its reasons. Nominally, we may remark, the district- 
rule in early days, and the decision of State courts 
afterwards, was, that full damages must be paid: in 
practice the obtaining of a fair compensation was often 

At an early date the State courts of California de- 
cided that "agricultural lands, though in possession 
of others, may be worked for gold ; " that " the right 
belongs to the miner to enter on public mineral lands, 
although used for agricultural purposes by others, and 
whether enclosed, or taken up and entered under the 
Possessory Act." " All persons," it is held, " who settle 
for agricultural purposes upon any mining-lands in Cal- 
ifornia, so settle at their own risk ; " they do it " sub- 
ject to the rights of the miner, who may at any time 
proceed to extract any valuable metals which he finds 
in such lands." At a later date, some cases of great 
hardship and loss having occurred, it was decided that 
" the enclosure about the house and outbuildings of a 
farmer is protected against entry." The burden of 
proof was thrown upon the miner, who was required to 
justify his right to enter upon and work a farmer's 
land by showing that the land was public land, that it 
contained mineral, and that he proposed to occupy 


it for the bond-fide purpose of mining ; and he must pay 
for the growing crops destroyed by his operations. 

The State passed an Act, April 20, 1852, providing 
that persons using public lands for pasturage or agri- 
culture might bring action for damages against miners 
who enter upon said lands, but must not interfere with 
their operations. An Act of April 25, 1855, protected 
"growing crops, buildings, and other improvements," 
in the mining-districts ; but closes with, " Nothing in 
this Act shall prevent miners from working any mineral 
lands in the State after the growing crops on the same 
are harvested." Decisions under these Acts were nu- 
merous. In every case, the right of the agriculturist 
to use and enjoy public lands was considered inferior to 
the right of the miner when gold was discovered in the 
land. The Government would issue no patent to a 
pre-emption claimant upon mineral lands who claimed 
it for agricultural purposes. Mere entry and possession 
gave no right to the exclusive enjoyment of public 
mineral lands. " The mines of gold and silver are as 
much the property of the State, by virtue of her sove- 
reignty, as are similar mines in the hands of private pro- 
prietors ; " and the State has, therefore, the " sole right 
to regulate and govern these mines." Growing wood 
and timber on public lands " belong to the prior appro- 
priator." No person, under pretence of holding land 
as a town-lot, can take up and enclose a tract of -min- 
eral land in a mining-district, as against persons who 
afterwards enter on the land in good faith to dig gold, 
and who do no injury to the use of the premises as a 
residence or for business purposes. Decisions like 
these, and many of a similar nature, help us to under- 
stand the completeness of the early mining-rights. 

The license granted by the State to each and every 


miner, allowing entry upon land for mining-purposes, 
as we have amply shown, was restricted to the public 
lands. No person could enter upon agricultural lands 
held by a United-States patent, and most of the farms 
in the mining-counties of California are at present so 
held. 1 In cases where the land has never been " with- 
drawn as mineral land," but, on the contrary, has been 
classed by the Surveyor-General as "agricultural public 
lands," the burden of proof rests on the mineral claim- 
ant. Within the last year, the Secretary of the Interior 
has rendered a number of decisions upon controversies 
of this character, in some cases overruling the decision 
of the commissioner of the Land Office. He has de- 
cided, in regard to placer-mining on small, unnavigable 
streams, that it is well settled that such places " may 
be appropriated ; and that, as to the water, the locator 
obtains only a usufruct in it ;" and granted a patent to 
a claim in the bed of Bear River, California. Local 
laws are allowed great weight in such decisions in the 

The foregoing illustrations only serve to emphasize 
the predominance of the mining-interests during the 
gold-era, when all the lands of the Sierra region were 
unsurveyed ; when there was no farm in the mining- 
counties, that miners could not condemn and mine out, 
paying for only the actual damages done. The fairest 
of gardens, the thriftiest of vineyards, the most fruitful 
of orchards, one and all were liable to be destroyed 
without remedy, by the early placer-miners. The gold- 
seekers could, and often did, sluice away roads, or cut 
them across by channels impassable for years, undermine 
houses, wash away fertile land, move towns to new sites, 

i See the famous case of Boggs vs. Merced Mining Company, 14 Cal. 
Rep., 279, in which Chief Justice Fields gave the decision. 


and tear the old location down to bed-rock with tor- 
rents of water. There are towns in the mining-region 
that have been twice or thrice thus removed ; there 
are others that have been " tunnelled," and " coyoted," 
and " drifted," until " caves " and " breaks " are of not 
infrequent occurrence in the midst of streets or town- 

But it has not been destructive always, this endless 
onslaught of the miners upon rock and hillside, vale 
and cliff. Lands have as often been created as others 
have been ruined ; barren beds of rock have often been 
filled up to the very brim with rich hillside soil, the 
alluvial deposit of ages, and so turned into gardens of 
magnificent beauty and exhaustless fertility. Farmers 
on mountain streams in the early days have more than 
once found that the mud-laden waters from mines above 
them brought added fruitfulness to their soil. Many 
persons have occupied adjoining tracts for mining and 
for agriculture, and have used water first for gold- 
washing and then for irrigation. Though the pre- 
eminent rights of the miner over all public lands 
sometimes worked hardship, yet the full recognition of 
these rights was the only logical conclusion of early 
California society ; and the only wonder is, that so few 
serious difficulties occurred in the gold-period, over this 
difficult problem. 

The earliest authenticated case of forcible entry upon 
fenced-in property used for agricultural purposes, of 
which we have an account, occurred in Grass Valley, in 
the spring of 1850. There was in all the mountain 
land no more lovely and fertile a spot than this valley, 
when the placer-miners began work there, and stripped 
its soil to the bed-rock along the wonderfully rich 
ravines : there is no lovelier spot to-day, when the re- 


storing hand of time, and the labor of loyal home- 
builders, have embowered it in gardens of unsurpassed 
beauty ; it is one of the fairest and most prosperous of 
the long array of mining-towns, once mining-camps, that 
nestle in the Sierra foot-hills, or rest in its pine-clad 

But in 1850, when Grass Valley was the " camp," two 
men fenced in a natural meadow. Here they could 
annually cut two heavy crops of hay, which was worth 
eighty dollars per ton ; they counted upon receiving at 
least four hundred dollars per acre that year. How- 
ever, before a month had elapsed, a prospector climbed 
the brush fence, sunk a shaft through the soil, struck 
"pay gravel," and in less than twenty-four hours the 
whole hay-ranch was staked out in claims of fifty feet 
square ; and, as tradition reports, the ravaged proprie- 
tors, through neglect or inability, did not obtain a single 
claim. The tract was not property, in the miners' defi- 
nition. The possessors had fenced it, subject to the risk 
that there might be mineral there. They ought to have 
prospected it for themselves first, and whispered the 
secret thereof to their intimate friends : so the sturdy, 
red-shirted, blue-overalled miners said. , 

In 1851, it is said that two miners began to sink an 
exploration shaft in Main Street, Nevada City, nearly in 
front of the office of the South Yuba Canal Company, 
and in the business centre of the town. A sturdy 
merchant came out, and expostulated with them ; but 
was promptly told that nobody had made any law 
against digging down to bed-rock, and drifting out the 
streets, and they proposed to try it. " Then, I'll make 
a law to suit the case," said the irate and energetic 
citizen, himself an ex-miner. Walking into his store, 
he came out with an army-revolver, and by its persua- 


sive presence established the precedent that Main 
Street, at least, was not mining-ground. Of course, 
this was an extreme case. A jury, or a miners' court, 
would probably have decided to exempt Main Street 
from exploration, as more valuable for business uses. 
But in the lesser towns of the mining-region, perma- 
nence did not exist. Nothing was sacred : all rights 
were subject to the claims of the miner. Many a case 
occurred, where the entire town was moved to an adja- 
cent spot, and every inch of the soil on which it stood 
was sluiced away from grass-roots to bed-rock. In 
many other cases, the miners thought it better to tunnel 
underneath, and work out the layers of rich gravel as 
best they could ; though this sometimes caused disasters, 
and buildings slid from their foundations with the crum- 
bling soil during winter rains. 

As regards the destroying of roads by miners, an 
instance which came under the writer's observation 
may serve to illustrate the custom. Nine miles of well- 
built mountain road connected a village of two hundred 
inhabitants with the county-seat. Though there was 
no district organization remaining (in 1878), its influ- 
ence was still strong. Along the river-bed, filled twenty 
feet deep with the wash and debris of the mines of 
1850, were rich spots, neglected by those careless, hasty 
pioneers. About a dozen men spent their illy-paid 
days in making experiments here and there, trying to 
find one of these unspoiled, unrifled bits of a placer. 
Two of these prospectors sank a shaft at the edge of 
the gravel, five or ten feet from the county-road, and 
" struck it rich." They worked a few days, and found 
the pay-streak extended into the hill ; they cut a rough 
and barely passable wagon-road through the dense 
thicket, a hundred feet higher up the slope, and in a 


week had torn out fifty feet of the road, leaving a 
chasm twenty feet deep. Farmers, merchants, county 
officials, passed by, swore at the climb, told them to 
hurry with their work, and asked how much they 
meant to clean up, but never hinted that the proceed- 
ing was illegal or unjustifiable. A few weeks passed, 
and the small, irregular piece of virgin ground over- 
looked by the early miners was swept clean, yielding 
enough, it is said, to pay for a well-stocked farm in 
the Sacramento Valley. The two miners tapped a ditch 
that passed by on the hillside, far above them, hired the 
use of the water, and sluiced earth, rock, and bushes 
down into the chasm until it was full to the brim, 
ready, when fairly settled down, to form a good foun- 
dation for the county-road again. 

Countless stories might be told to exemplify the 
supreme position of the miner in early California. But 
there was little abuse of that supremacy. Once admit 
that the highest use of the soil was to yield gold, and 
the rest follows as a matter of course. The great ma- 
jority of the early farms and orchards were planted on 
soil that was guiltless of containing gold in paying 
quantities, and so remained undisturbed. In one case 
a miners' court decided, when a small orchard of four- 
year-old apple-trees had been mined out, that the land 
was worthless; but that the trees, which had been 
brought overland from Oregon, were worth fifty dollars 
apiece, fruit being then excessively high-priced in 
the mines. They had not yet borne fruit, but the 
owner received twenty-five hundred dollars for them. 
We have heard of several instances where men who 
paid high prices for possessory claims to agricultural 
lands made extensive improvements; and, the lands be- 
ing entered upon for mining-purposes, no equivalent 


damages could ever be obtained. In Placerville we 
were shown a bit of meadow, which in 1881 had been 
mined out five or six times, as it receives the rich, 
wash from mines above, and the soil from the hillsides. 
Pieces of waste and worthless bed-rock, swept clean by 
the pioneers, have often been restored, and made into 
beautiful and profitable vegetable-gardens, clover-fields, 
and fruit-orchards, simply by the process of washing 
the rich surface-soil of the hillside down into the 
hollows, by using the hydraulic method. 

As a rule, in the mines, agriculturists and miners 
lived together in harmony in those early days. The 
profits of vegetable-growing, hay-raising, etc., were so 
great, that the man who tilled the soil often made more 
than did the man who washed out gravel ; and their 
unity of interests has been so well recognized, that in 
the long struggle between the valley-farmers and the 
miners, over the debris-question, which has now passed 
into history, the farmers of the mining-region often 
helped to support the miners through their thoroughly- 
welded-together organizations. 

Of that great struggle, which has been to all intents 
and purposes a suit between valley-counties and mining- 
counties, it is yet too soon to speak ; for a generation 
must pass away before its results are manifest. But it 
will always rank as one of the most important judicial 
decisions ever made in an American State. The calcu- 
lations of engineers were, that, since 1876, a hundred 
million cubic yards of gravel, sand, and clay had been 
washed into the Yuba and its tributaries ; that in 1880 
some 15,220 acres had been seriously injured by these 
" slickens " deposits ; and that six hundred million 
cubic yards yet remained to be removed. The steady 
shoaling of navigable rivers and bays was also charged 


to the mining-detritus. It was testified, that, prior to 
1862, at least thirty thousand miners worked the 
Yuba and its branches. The citizens of the valleys 
brought many suits of a representative character ; and 
between 1877 and 1884 the issue was fought with the 
best legal weapons, and funds were raised on both sides 
by means of associations. The question was sui ge- 
neris : the agricultural interests of the lowlands were 
pitted against the hydraulic-mining interests. The State 
Supreme-court decision of Jan. 7, 1884, was, that private 
rights could not be encroached upon under guise of 
" miners' customs," even in districts where the statutes 
recognize the validity of such local laws. The maxims 
of the common law in reference to water-rights were 
fully sustained, and a perpetual injunction granted 
against the miners " unless they can so mine as not to 
injure the valleys." The rights of miners to use places 
of deposit for " tailings " and other mining-vein's, sub- 
stantially supported by earlier decisions, were thus sub- 
ordinated to agricultural interests ; and only the alter- 
natives of " drifting " out the rich gravel, or of im- 
pounding, satisfactorily to the courts, the hydraulic 
debris, have been left the miners. The hidden wealth 
of the pliocene river-channels is so great, that many 
portions of them will pay for working, even by these 
more expensive methods ; but the early predominance 
of mining over agricultural interests, granted by local 
law, is now a thing of the past. 

1 The time is not far off when the varied agricultural 
possibilities of the old mining-region will be recognized 
as second to that of no territory of equal size on the 
Pacific Coast ; and when the population supported by 
agricultural and horticultural pursuits within those 
famous mining-districts whose laws we have studied, 


and whose early organizations we have described in the 
previous chapters, will be greater then that of those 
camps in their "flush times."f The land, every acre of it, 
will pass under full private ownership, held by govern- 
ment-patent ; and the mineral in the land will belong to 
the dweller thereon. Indeed, the railroads and various 
large corporations now hold a great part of the lands 
in this mineral belt once entirely public lands. The 
timber is being removed, the iron is being smelted, the 
valuable stone-quarries worked ; in some places, colonies 
of settlers are planting orchards and vineyards, orange- 
groves and olivariums, using for irrigation the water of 
mining-ditches cut by the labor of the energetic pioneers 
of '49, enlarged and extended by the vast associated 
capital of later years. The future of the mining-region 
used to be a favorite subject of conversation with the 
late Mr. B. B. Redding, one of the foremost nature- 
students on the Pacific Coast, one of the noblest and 
most generous of men, the friend and associate, all his 
life, of the pioneers, founders, and leaders of the State. 
He used to say that Italy, Spain, and southern France, 
all combined, would some day seem poor in comparison 
with eight or ten counties of the mineral belt of Cali- 
fornia, whose resources in horticultural directions were 
simply incalculable. The work done in that region dur- 
ing the past five years has gone far towards justifying 
Mr. Redding's bold prediction. 



THE miners* local land-laws, as we have heretofore 
seen, rested on the proposition that the soil was all 
government property, and that the nation allowed them 
the use thereof, under a possessory title, even though 
they should never wish to purchase it. Digging gold 
.was early declared to be "a franchise from the govern- 
ment, and free to all." In this faith, American miners 
developed the system we have been studying in notes 
from the laws of different camps. But the hundreds of 
important mining-litigations that occurred during the 
gold-era of California preserve in their dreary wastes 
some precious bits of local history, like diamonds in the 
sea-sands. Law is the great shrine-builder, after all. 
The wrecks of old systems, the superstitions of forgot- 
ten races, the customs of perished kingdoms, are frozen 
in this iceberg of law, sealed forever in its translucent 
prison-walls, as mammoths in the ice of the Siberian 
tundras ; or, if we choose, we may use a gentler simile, 
and call law the amber of the Baltic, making precious 
each bit of ancient life intrusted to its care. 1 

1 Among the important cases in the California Reports referring to 
"local laws and customs," are the following, besides many others: 
People vs. Naglee, 1, 238; Hicks vs. Bell, 3, 219; Mitchell r*. Hagood, 6, 
148; Davis vs. Butler, 6,511; Fairbank vs. Woodhouse, 6, 433; Sims r,s\ 
Smith, 7, 148 ; McKeon vs. Bisbee, 9, 137 ; Packer vs. Heatou, 1, 5(i8 ; 


We find that because the early miners of California, 
in their plain, effective, and untechnical system, had 
made use. the only basis of ownership, they also or- 
dained that the same piece of ground could be occupied 
and owned by different persons at the same time, pro- 
viding it was required and held for different purposes. 
If one man held a placer-claim for placer-uses, and 
another miner discovered a quartz-ledge on the same 
tract, it could be recorded and held without any inter- 
ference from the placer-miner. If there was also an 
unclaimed spring or stream of water on the same tract, 
it could be taken up, or claimed, for mining-purposes, 
by still a third prospector ; and these three men might 
long continue to use and enjoy the profits of their sepa- 
rate interests in the same small tract. Ground taken 
up for mining . could be again taken up for fluming pur- 
poses. Riparian rights were possessory, and subject to 
much the same rules that governed the holdings of 
mineral lands ; neither party claiming absolute owner- 
ship. 1 

The State courts recognized as legal mining-claims 
those held by local law and customs, and also those 
held by actual occupancy of government-lands. But 

Jones vs. Jackson, 9, 237; O'Keiffe vs. Cunningham, 9, 589; Clark vs. 
McElvy, 11, 154; Waring vs. Crow, 11, 366; California vs. Moore, 12, 56; 
McGarrity vs. Byington, 12, 426; Jackson vs. F. R. & G. W. Co., 14, 22; 
Merritt vs. Judd, 14, 64; Brown vs. '49 and '56 M. Co., 15, 160 and 20, 
198; Clark vs. Duval, 15, 85; Edmond vs. Chew, 15, 142; Roach vs. Gray, 
16, 387; English vs. Johnson, 17, 107; Atwood vs. Fricot, 17, 37; Prosser 
vs. Parks, 18, 47; Gore vs. McBrayer, 18, 582; Logan vs. Driscoll, 19, 623; 
Tahle M. T. Co. vs. Stranchan, 20, 198; Copper Hill M. Co. vs. Spencer, 
25, 18; Martin vs. Solambo,26, 527; St. John vs. Kidd, 26, 263; Hess vs. 
Winder, 30, 349 j Stone vs. Bumper, 46, 318; Shay vs. Ryan, 46, 33. Also 
California Legislature, Act of April 14, 1860; Act of May 17, 1861; and 
Act of April 4, 1864. 

1 " Surveys, notices, stakes, and blazing of trees, followed by work, 
. . . give title to unclaimed water." Kiinball vs. Gearheart, 12 Cal., 27. 


the size of claims must not be unreasonable : even 
where no local law exists to limit them, it must con- 
form to the general usages of miners. The customs of 
miners in the definition of quartz-ledges are entitled to 
great if not controlling weight. Proof of similar cus- 
toms in other districts besides that in which a claim is 
located is not improper. Subsequent mining-rules of a 
district have been accepted as valuable evidence to aid 
in determining prior rights. The entire mining-code of 
a district must be considered, not merely a portion of 
it. The State courts waived the right of inquiry into 
the "regularity of the modes in which these local legis- 
latures or primary assemblages act. They must be the 
judges of their own proceedings. It is sufficient that 
the miners agree, whether in public meeting, or after 
due notice, upon their local laws, and that these are 
recognized as the rules of the vicinage." l Consonant 
with this is the decision that the authority of " mining- 
customs " is to be allowed to take precedence of written 
district-laws which have been disregarded or long neg- 
lected. What gives district-laws their authority is not 
their mere enactment, but the obedience and acquies- 
cence of the miners following upon that enactment; 
and a custom in itself reasonable and generally observed 
ought certainly to take precedence over a generally 
ignored district written law. The moment a district-law 
falls into disuse, it is void. This question has been held 
" one of mere fact, for the jury to determine; " and simi- 
lar in nature, recognizing the will and intention of the 
miners' assembly, is a decision, that, " although mining- 
laws were passed on a different day from that men- 
tioned in the notice calling the meeting, they are not 

1 Gore vs. McBrayer, 18 Cal., 582. 


invalidated. It is sufficient that the miners agreed 
when they did meet. The regularity of their local 
meetings is not to be questioned." 

Controversies must be settled by the customs and 
usages of the " bar " or "diggings " embracing the claim 
in question, whether such customs be written or un- 
written. Miners have the right to prescribe rules gov- 
erning acquisition and divesture of title to claims, and 
their extent, subject only to State laws. But mining- 
rules must not limit the number of claims that a person 
may acquire by purchase, nor prevent prospectors from 
locating mines for others. 

No acts are required of the miner other than use of 
his property in accordance with local laws. He need 
not live on his claim (though governme*nt-land could 
not be held for agricultural purposes unless used as a 
homestead by the claimant), nor need he build upon 
it, nor cultivate it, nor enclose it. His title is funda- 
mentally different from that of the agricultural settler. 
And it has also been decided, that the right the miner 
has possessed since 1848 to enter and mine upon 
government-land carries with it the right to whatever 
else is needful, such #s use of water and of wood. It 
includes the right to build, to make a home, to plant 
orchards and gardens. But fences are not necessary 
for the miner : the defining of his boundaries by district 
monuments is sufficient. He still keeps his homestead, 
not by agricultural pre-emption, but by a miner's pos- 
sessory title, and as a privilege attached to the owner- 
ship of his claim. 

It was decided by the Colorado courts, that not until 
compliance with district rules had been attacked, was 
any proof of such compliance required ; that if the 
district, for instance, made " notices " and " prospect- 


stakes" sufficient without registry, it is taken for 
granted, without proof to the contrary, that the local 
law is obeyed. 1 

In Montana, as in California, it was decided that the 
rights of ownership vested in a person, under the rules 
of a given mining-district, are not affected by a change 
in the district boundaries : the old rules still govern as 
regards size, but not as regards method of working. 2 
/ In the old California camps, as we have seen, the 
verbal conveyance of a claim was sufficient. - Until 
1860 the validity of such verbal sales was fully sus- 
tained by the State courts, which had previously held 
that writing was not necessary to vest or to divest the 
title ; which title is in the government, and the right 
to mine is in" the local custom. A transfer may as 
well be by simple possession as by deed. All miners' 
claims, under local law, to public mineral lands, are to 
be regarded as titles ; but the right passed by a bill of 
sale, without seal and without warranty, is only a pos- 
session, and is subject to a superior right. 

The penalty of forfeiture fixed by camp-laws, if a 
certain amount of work was not performed, has been 
amply sustained by the courts. .A person who had 
abandoned his claim was not allowed to re-assert his 
former interest to the prejudice of others. In questions 
of "abandonment," the intention governs. The rule, 
custom, and usage of the district must be open, plain, 
notorious, so that the miner leaving his claim knows 
that his action is tantamount to an intention of aban- 
donment. If a miner attempts to hold more than local 
custom permits, any other miner can take possession of 
and work the surplus portion, and the injured party 

1 Sears vs. Taylor, 4 Colorado Rep. 

2 King vs. Edwards, 1 Montana, 236. 


cannot recover damages. The term "forfeiture of 
rights," as used in mining-customs, has been decided 
to mean " the loss of a right previously acquired to 
mine a particular piece of ground, by reason of neglect 
or failure to comply with local rules and customs." 
Forfeiture re-opens a claim to immediate location by a 
new owner. But in the absence of any custom or local 
regulation of the given district on the point, the right 
of property in a claim is not nullified by lack of dili- 
gence in working it. According to recent decisions 
of the Secretary of the Interior, it is not necessary to 
require miners re-locating a lode to furnish positive 
and complete proof of its abandonment by a former 
locator. The fact that such abandonment was alleged 
in the notice of location, and published in the manner 
and for the time required by law, is thought sufficient, 
provided that no adverse claim is presented. Full 
recognition of the force and authority of local laws is 
nowhere more evident than in the State-court decisions 
regarding abandonment of claims. 

Those special rights granted to discoverers of, and 
first locators upon, new placers, receive encouragement 
from State decisions, which ruled that "the owner of 
the oldest location on a stream or canon-bed may dam 
up tha canon to work his claim, even though it floods 
other claims the owners of which are damnum absque 
injuria" Ordinarily each person mining in the same 
stream is " entitled to use, in a proper and reasonable 
manner," both the channel of the stream, and the water 
flowing therein. According to good law and reason, 
miners were forbidden to deposit the waste gravel, or 
" tailings," on other men's claims. 

As regards actual work done upon a claim, the 
local laws have been sustained and liberally interpreted 


by State courts. Work on adjoining land to construct 
roads ; drains and improvements necessary to develop- 
ment of the mines ; efforts made to procure machinery, 
as the hauling of the same ; starting a tunnel, though 
at a considerable distance, to run into the lead or 
deep gravel-bed, these and similar labors are termed 
" work " in the eyes of the law ; such acceptance being 
in fullest accord with miners' local legislation. 

Mining-claims having been recognized as property, 
and the course of local enactments being to give their 
ownership the permanence of real estate held under 
United-States laws, we find that in 1861 those provisions 
of the law exempting mines from taxation were re- 
pealed. "The interest of the occupant of a mining- 
claim is property liable to taxation, and to being taken 
and sold under execution." 

( We have previously seen how great a monthly tax 
was levied upon foreigners in the early mining-days. 
By 1861 the tax, once thirty dollars per month, had 
been reduced by successive State enactments to four 
dollars. [The tax-collector- of the county was then au- 
thorized to sell at public auction, on one hour's notice 
by proclamation, the mining-property of any person 
refusing to pay such tax. Americans connected in any 
way with foreigners in working mining-ground- were 
held liable for the amount of license of each such for- 
eigner. This tax upon foreigners was held to be only 
a license-fee, and its imposition not contradictory to 
the powers of Congress. And "the State alone can 
enforce the law which prohibits foreigners from working 
mines without a license : " other miners could not take 
the law into their own hands, and trespass on such 

The mass of printed material relating to the decisions 


of district, county, Territorial, or State courts, upon 
mining-subjects, is so extensive that the illustrations 
already given form but a small part of the whole. Vol- 
ume after volume of Western law-reports deal with 
mining-cases, and contain laborious researches into 
Spanish archives, and Californian provincial history, 
and the masterly deductions of unsurpassed judicial 
intellects. A book written by a lawyer, for lawyers, 
upon some of the great mining-cases of California, from 
those of the early fifties in Tuolumne, Placer, and 
Butte, to the famous group of " mining-debris " cases 
of the last few years, would be a notable work, and 
one well worth the while of some fully-equipped jurist. 
From a lawyer's stand-point, the worst thing about 
the local laws of the early camps was their lack of 
uniformity ; but from an institutional stand-point, this 
irregular and spontaneous element is their strongest 
claim to a place in Western history. A great need 
called them into existence : they grew in accordance 
with the nature of things, as simply and surely as pines 
grow in a forest. Yet we have previously shown many 
points of resemblance ; and a still closer analysis of the 
hundreds of codes of old camps now obtainable of 
camps from every mining-county of California, Nevada, 
Oregon, and some of the Territories proves that the 
local laws and usages over this great region are based 
upon five principles: to have each claim of definite 
size ; to enforce the law of use ; to maintain " in- 
clined locations " (gestreckfeld') in case of quartz ; to re- 
cord all claims ; and to insist on this record as final in 
case of dispute. All these appear to be Germanic ideas, 
now a part of our race-equipment for the world's battle, 
but none the less a heritage from Teutonic ancestors. 
German, English, American laws, adopt the "inclined- 


location" idea, that a man takes up a piece of mineral 
land for the lode alone, and shall have the right to 
follow it downward indefinitely, including all dips, spurs, 
and angles. Spanish law insists upon "square loca- 
tions," simply the surface, and all beneath it in a per- 
pendicular direction. Some high authorities, such as 
Professor Raymond, prefer the latter system, as greatly 
lessening litigation. Commissioners, among whom were 
Clarence King, J. W. Powell, and Thomas Donaldson, 
recommended, in 1880, the abandonment of the "in- 
clined-location " system. It is a question that should, 
of course, be decided upon practical grounds ; but it is 
not likely that our present system will soon be dis- 



THE varied methods by which camps were governed, 
and district-law enforced, and the acceptance of their 
enactments by the early State courts, have probably 
received sufficient illustration ; but the way in which 
these enactments spread over the surrounding territory, 
and ultimately aided to form a national system of min- 
ing-law, deserves our attention, as added proof of its 
creative force. 

Recognition by State legislatures began with Cali- 
fornia, in 1851, when senators and representatives, 
acknowledging the fact that the miners had perfected 
a practical working-system, provided that in all actions 
respecting such claims the proceedings of the miners' 
meetings should be regarded by the courts, "so far as 
they are not inconsistent with the laws and constitution 
of the State." It was this Legislature that conferred 
jurisdiction in all cases of mining-claims, whatever 
their value, upon the local justices of the peace. 

A little before this time, the very existence of the 
mining-code had been in great danger. When John C. 
Fremont was United-States senator from California, he 
introduced a bill to establish police-regulations through- 
out the mining-region, and levy a small tax upon the 
miners. At that time the winter of 1850-51 such 



a measure would have destroyed the institutions so rap- 
idly developing in the camps of energetic gold-seekers. 
The discussion in the Senate was a tedious one. Many 
of the senators favored sale of all mineral lands to the 
highest bidders. But it is to those great but widely 
different leaders, Seward and Benton, that the full 
acceptance by the nation of the policy of free mining 
on government-land was finally due. They vainly 
urged it, and at last insisted upon delay in legislation. 
A year later the local regulations of the mining-camps 
were so satisfactory, that Congress hesitated to change 
the system. Meanwhile, the miners accepted this de- 
lay as a tacit recognition of their demands, a tacit 
promise to legalize their possessory rights. So they 
pushed forward their explorations of gravel-beds and 
rock-ledges, of ravines and mountains; they increased 
their investments in machinery, water-ditches, costly 
tunnels, flumes, embankments, and other requisites of 
their gigantic undertakings. 

By 1861 the miners' customs, usages, laws, and reg- 
ulations had spread outward from California, whose 
court-decisions were almost universally followed, and 
were recognized in other States and Territories of the 
West. In Colorado the miners made local laws long 
before the Territorial legislature attempted to regulate 
such things. Illinois District, Gilpin County, allowed 
claims to be two hundred feet long by fifty feet wide, 
and prospectors were allowed to locate claims for others. 
In November, 1861, the Legislature of Colorado decided 
that valid mineral locations could only be made in full 
accordance with the local laws of the district in which 
the location was made. 1 

1 Sullivan vs. Hense, Colorado Rep., vol. 2, p. 425. 


The laws of Nevada Territory, passed in November, 
1861, declare that, 

"In actions respecting mining-claims, proof shall be admitted 
of the customs, usages, or regulations established and in force in 
the mining-district embracing such claim ; and . . . [they] shall 
govern the decision of the action in regard to all questions of loca- 
tion, possession, and abandonment." 

The laws of Nevada, in 1862, provided that, 

" All conveyances of mining-claims . . . shall be construed in 
accordance with the lawful local rules, regulations, and customs of 
the miners." 

The "location and transfers of mining-claims . . . 
shall be established and proved before courts by the 
local rules, regulations, or customs of the miners in the 
several mining-districts." 1 

The Nevada statute of Feb. 27, 1866, provided 

*' The extraction of gold or other metals from alluvial or dilu- 
vial deposits, generally called placer-mining, shall be subject to 
such regulations as the miners in the several mining-districts shall 

Idaho, Feb. 4, 1864, ordained that, 

" The conveyance of quartz-claims shall be construed in accord- 
ance with the local mining rules, regulations, and customs in the 
several districts." 

1 The local laws of Reese-river mining-district, passed in 1862, and 
amended in 1864, provided for a mining-recorder, whose fees were one 
dollar for every location registered. The term of office of said recorder 
was one year, " unless sooner removed by an election called by fifty or 
more claim-holders." The size of a claim is fixed at two hundred feet 
on a ledge, " with all the dips, spurs, angles, offshoots, outcrops, depths, 
widths, and variations." An application of twenty-five miners is sul* 
ficient to call a miners' meeting. 


Arizona provided that the size of the mining-claims, 
or pertenencias, should be regulated within given areas 
by the miners ; and, further, that the records of mining- 
districts " shall not be rejected for any defects in their 
form when their contents may be understood." Twelve 
or more persons were allowed to form a new district, 
"make laws therefor, and elect a recorder." Mon- 
tana passed a Territorial Act allowing thirty or more 
miners to hold district-meetings, and "make all laws 
not conflicting with vested rights." Oregon, in a stat- 
ute of 1867, ordained that " any person may hold one 
claim by location, and as many by purchase as the 
local laws of the district allow ; " also, that the miners 
" shall be empowered to make local laws " in relation 
to the possession of water-rights, the possession and 
working of placers, and the survey and sale of town- 
lots in mining-camps, "subject to the laws of the 
United States." 

Thus the local law of the miners had won recogni- 
tion in State courts, and had extended to other States 
and Territories. It also gained a hearing in the Supreme 
M^ourt of the United States. In 1865 Chief Justice 
Chase, in one of his decisions, said, 

" A special kind of law, a sort of common law of the miners, 
the offspring of a nation's irrepressible march, lawless in some 
senses, yet clothed with dignity by a conception of the immense 
social results mingled with the fortunes of these bold investiga- 
tors, has sprung up on the Pacific Coast, and presents in the 
value of a mining-right ' a novel and peculiar question of juris- 
diction for this court." l 

Senator Stewart of Nevada, himself a miner of 1849, 
and one who helped to govern some of the early camps 

1 In Supreme Court U. S., Dec., 1865, case of Sparrow vs. Strong ; 
appeal from Story Co., Nov. : 3 Wallace, U. S. Sup. Ct., p. 100. 


of northern California, speaks eloquently of the legis- 
lative work done by the pioneers. In a letter to Sena- 
tor Ramsay, and in a speech delivered in the Senate in 
June, 1866, he exclaims that the Argonauts "found no 
laws governing the possession and occupation of mines 
but the common laws of right which Americans alone 
are educated to administer. They were forced to make 
laws for themselves. The reason and justice of the 
laws they formed challenge the admiration of all who 
investigate them. Each mining-district in an area ex- 
tending over not less than fifty thousand square miles 
formed its own rules, and adopted its own customs. 
The similarity of these rules and customs throughout 
the entire mining-region was so great as to attain all 
the beneficial results of well-digested general laws. 
These regulations were thoroughly democratic in their 
character, guarding against every form of monopoly, 
and requiring continued work and occupation in good 
faith to constitute a valid possession." 1 About the 
same time the Conness Committee Report to the Senate 
of the United States said, 

" The miners' rules and regulations are not only well under- 
stood, but have been construed and adjudicated for now nearly a 
quarter of a century. ... By this great system established by 
the people in their primary capacities, and evidencing by the high- 
est possible testimony the peculiar genius of the American people 
for founding empire and order, popular sovereignty is displayed in 
one of its grandest aspects, and simply invites us, not to destroy, 
but to put upon it the stamp of national power and unquestioned 

In another place the same report says, 

" The rules and regulations of the miners . . . form the basis 
of the present admirable system arising out of necessity; they 

i Speech, reported in Cong. Globe, June 19, 1866. 


become the means adopted by the people themselves for establish- 
ing just protection to all. . . . The local courts, beginning with 
California, recognize those rules, the central idea of which was 
priority of possession ." l 

y Congress passed an Act July 26, 1866, which recog- 
nized the " force of local mining-customs, or rules of 
miners wherever not conflicting with the laws of the 
.United States." Subsequent Acts, principally the Act 
*r of 1872, have defined the entire subject of mining-law; 
and decisions of the courts and of the heads of the 
departments have followed in the lines laid down by 
the Acts of 1866 and 1872. The manner in which a 
United-States land-patent may be obtained for any 
land claimed and located for valuable mineral deposits 
is now fully set forth. The payment of five dollars 
per acre is required, and the smallest legal subdivision 
is ten acres. After a notice of " intention to purchase " 
a described tract of mineral land, sixty days are allowed 
for other parties to file their adverse claims, if any such 
exist; after the expiration of this time, no objection 
from third parties shall be heard except it be shown 
* that the applicant has failed to comply with the law. 
Congress has required that placer-locations upon sur- 
veyed lands shall conform to public surveys in all cases 
except when this is made impossible by the previous 
appropriation of a portion of the ten or more acres 
desired (that is, by claims held under local law), or 
where it "is impracticable to so locate the claim." 2 
It is the evident intention of the mining-laws to allow 
persons to take a certain quantity of land fit for mining. 
Where the entire placer-deposit in a canon within cer- 
tain limits is claimed, and where the adjoining lands are 

l Report to Senate, May 28, 1866. 

Act of July 9, 1870; modified by Act of May 10, 1872. 


unfit for any use whatever, the claimant need not con- 
form to the survey-lines." 1 

The Revised Statutes of the United States, relating 
to mineral lands and mining-resources, supersede and 
repeal many provisions of the Acts of 1866, 1870, and 
1872; but mineral lands are still "free and open to 
exploration and purchase . . . under regulations pre- 
scribed by law, and according to the local customs or 
rules of miners in the several mining-districts, so far 
as the same are applicable, and not inconsistent with 
the laws of the United States." The sections referring 
to locators and their exclusive right of possession and 
enjoyment of their mining-claims, to tunnel-rights, to 
miners' regulations and improvements, to existing rights, 
to vested rights in the use of water, to rights of way 
for canals, and to titles of town-lots as subject to 
mineral rights, are all of them distinct recognitions of 
early local law, and afford plain evidence of its wide- 
spread influence. 

This liberal policy has filled the ravines of the Rockies 
with prospectors and miners. It has fostered freedom, 
and aided the beginnings of law. Men still form 
mining-camps, still govern them under local forms : but 
as soon as the district proves of permanent value, they 
usually abandon this form of organization, for township, 
county, and territorial forms; for they are not only 
miners, but also citizens of the Republic, and they 
look forward to State life and national relationship. 

In the course of the development we have endeavored 
to trace, the most prominent fact appears to be the 
wide-spread effect of these informal laws of frontiers- 
men. The best talent in the State of California was 

i Kecent decision of Secretary Teller, February, 1884. 


engaged at last in the task of codifying the scattered 
camp-laws, eliminating their manifold contradictions, 
and remedying their shortcomings. Slowly, through a 
long series of years, a multitude of wise judicial decis- 
ions moulded scattered customs, fragmentary camp- 
laws, relics of the folk-moot era, survivals of the alcalde 
period, usages of the time of the later hydraulic mining, 
into an apt, terse, strong, useful, and comprehensive 
system of common law, regulating not only the rights of 
miners over mineral ground, but also their riparian rights. 
Then the nation recognized its responsibility, and the 
work of creating a general system was begun. There 
is much yet to do ; a National School of Mines must be 
established, and stricter legislation is required to pre- 
vent wasteful mining: but the great features of the 
present law are thoroughly consonant with the spirit 
of republican institutions. This we owe to the men 
of the mining-camp. 




CONSERVATION of energy is an axiom of science. 
Though every mining-camp perished to-morrow, the 
impulse that gave them birth would still survive. The 
local life, strength, and energy of the early camps has 
already passed as a powerful force, not as a name, into 
the warp and woof of society. So far-reaching and 
powerful have been the influences of camp-life and 
camp-law upon the growing communities of the Far 
West, that one might almost be justified in the belief 
that a new social order would thus be produced. 
Everywhere, over the great region we have been study- 
ing, the spirit of the past abides in multitudinous forms. 

It matters not that the elder camps have decayed; 
nor that the elder pioneers have departed, as the " poet 
of the Sierras " expressed it, " to prospect the stars ; " 
nor that county officials sit where alcaldes sat, and 
schoolhouses stand where folk-moots met of old. The 
men and women whose childhood was passed in these 
camps are beginning to control the State. Each com- 
munity, once welded together in camp-life, possesses a 
unity of feeling that bids fair to be permanent. This 
is true of California, and may reasonably be expected 
to prove true of the later-settled mining-regions. We 



observe, in the newest camps of the British-Columbia 
border, the same spirit of swift, healthy camp-life, the 
same return to primitive forms of jurisprudence, the 
same American determination that crime shall be pun- 
ished, property and life made safe : therefore we may 
have faith that the same results will follow there as in 
California, that stable communities will be established, 
and higher forms of society evolved. 

The nature of the forces long ago set at work in new 
Western communities by the institutions of the typical 
camp can best be illustrated by a case which was but 
one of a thousand. It occurred in 1858, in California ; 
and some of those concerned in the enterprise are still 
alive. The " surface diggins " of the camp were ex- 
hausted, but rich gravel was thought to lie beneath the 
mountain, to be reached only by a tunnel of great cost ; 
and the men who owned the possessory right to tunnel 
were all poor. They met, and talked it over, counted 
their funds, and began work ; blasted a hole forty feet 
in the rock no more money in the treasury. They 
borrowed quite an amount in small sums, paying no 
interest, and drove the tunnel deeper. They appointed 
a number of men to continue the work, while the rest 
of the company hired themselves out at daily wages 
to support them, and buy the necessary tools and 
blasting-powder. Economy was the order of the day, 
and fraternal co-operation was its watchword. At last 
they won : a company of poor and uneducated men, by 
reason of perfect faith in each other, and grim, tireless 
persistence, carried a load that capitalists would have 
refused, and walked at last into Nature's treasure- 
house, finding a bed of gravel rich enough to amply 
repay them all. It was not thought a remarkable thing 
in those days. All over California, groups of compara- 


tively poor men were standing by each other in the 
same manly way. Now, that, in the last analysis, was 
and is the feeling fostered in true mining-camp life. In 
camps, too, we have something of the guild idea. The 
weavers and the goldsmiths of the Middle Ages had the 
fraternity feeling, and so have the miners of America. 
Sturdy self-reliance, mingled and tempered with a high 
appreciation of one's dependence upon others; the 
power to stand alone ; the power to organize, if need 
be, with sudden energy and startling swiftness, these 
were traits fostered by the patient toil of the miners of 
America; and because of qualities such as these, the 
fame of the pioneers of California and the Rockies has 
gone wherever winds blow or waters run. 

The physical spread of the mining-camp influence, 
through wandering prospectors and miners from de- 
serted camps, assumes in this connection a greater 
importance than before. We have studied the growth 
of the miners' code from the rude regulations of the 
few camps of 1848. We have alluded to the nature 
of the frequent mining excitements that inevitably 
extended this code ; but some of the features of this 
movement deserve especial prominence. In 1859, for 
instance, several thousand California miners went to 
Cariboo, British Columbia ; in 1860 the first mining 
was done in Idaho, on the Clearwater and Salmon ; and 
hundreds of Californians hastened thither. The same 
year, also, the Washoe rush began ; and within 'two 
years the sage-brush deserts and treeless mountains of 
Nevada were explored, the treasures of Coso, Pioche, 
Tuscarora, Esmeralda, Potosi, Humboldt, Reese, and 
other districts had been unveiled ; while Bodie in Cali- 
fornia was also discovered. The year 1862 also wit- 
nessed the rush to Boise, and to the John Day region 


in Oregon, in which State the Powder and Burnt River 
placers had been found the previous year. The Owyhee 
mines drew prospectors in 1863, the quartz of Alturas 
in 1864, the placers of the Big Bend of the Columbia 
in 1865, White Pine in 1866. California sent out thirty 
thousand or forty thousand stalwart and well-trained 
miners in these three or four years. 

The reasons for such an exodus are not hard to find. 
When the surface-wealth of California became so nearly 
exhausted that men could no longer make the wages 
to which they had been accustomed, they became rest- 
less ; when surface miners could no longer make living 
wages, their occupation was clearly gone. The game 
was " played out ; " so was the camp. There were 
then a few, more fortunate or more frugal than the 
majority, who were able to unite in companies to pur- 
chase machinery, build forty-mile flumes, explore the 
deeper auriferous channels of blue gravel, tunnel solid 
rock and walls of lava, turn the course of rivers, sink 
deep shafts, to hold their own, in brief, throughout 
the new era of capital and monopoly. The weak men 
sank into laborers for the new companies, or became 
searchers for precarious finds in the gravel-heaps of the 
past. Hundreds of energetic men of small means were 
still able to hold and work mining-property on a mod- 
erate scale, but the one resource of the strong was to 
find a new camp. The great majority of those to whom 
the mines were no longer liberal swarmed out of the 
busy hive, as has ever been the custom of the pioneers 
of our race. When the smallest coin used for change 
in California sank from a twenty-five-cent piece to ten 
cents, the emigration began ; when it sank still farther 
to five cents, the disgust and despair of the genuine 
forty-niner can hardly be described. He felt the earth 


slipping away from under his feet. Even as late as 
1878, in Trinity County, five-cent pieces were very 
rarely seen, and were sometimes refused. The smallest 
coin expected for a service was a quarter. Nickels 
were particularly obnoxious to the miners. Every 
thing smaller than half a dollar was rather disrespects 
fully denominated " chicken-feed." , j. 

Under these conditions, hundreds of miners became 
tillers of the soil; but other hundreds swarmed out 
into the unexplored spaces, searching the ranges that 
loom higher and higher northward into British Colum- 
bia and Alaska, crowned with eternal snows, and dread- 
ful with arctic dangers. Perhaps some of them sailed 
up the Yukon, the "Amazon of the North," long before 
Carl Ritter had heard its name or knew its vastness. 
Indeed, in 1874, a San Luis Obispo (California) miner 
told the writer that he spent a summer prospecting 
in Alaska for gold, long before 1856. Miners once of 
California, but now of the world at large, prospected 
the chief districts of the new South-west and of the 
new North-west, becoming leading citizens in Arizona, 
New Mexico, Utah, Montana, Idaho, Wyoming; names 
familiar as household words to old Califoraians appear 
and re-appear in the records of Tombstone, Candelaria, 
Leadville, San Carlos, the Black Hills. They followed 
the Rockies across the lines, northward, southward. 
American prospectors drifted into the French-Canadian 
settlements on the Saskatchawan, bringing lumps of 
silver and nuggets of gold from the then unexplored 
regions which the Canadian-Pacific Railroad is entering 
from east and west with giant strides. American pros- 
pectors drifted into Mexico; adopted sombreros and 
tortillas; creviced for gold with Spanish machetes, in- 
stead of with Tuolumne-county butcher-knives; built 


rockers, long-toms, and sluice-boxes, of Mexic cedar, 
instead of California sugar-pine ; affiliated with the 
people, fought Indians for them, taught them better 
methods of mining, and prepared the way for closer 
international relations. 

But the migratory impulse circling outward from 
Sutter's ruined mill had a meaning for lands outside 
of North America. It ultimately became of world- 
wide influence. E. H. Hargreaves, for a time a Cali- 
fornia miner, returned to his home in Australia, leaving 
good diggings. He went to the government, received 
an appointment to search for gold, and in a short time 
discovered the placers of that mighty island-continent. 
Many Californians followed his footsteps, leaving a 
strong impress upon the local mining-legislation and 
"miners' councils" of Australia, particularly of Vic- 
toria. In 1860 thousands of miners went to Barba- 
coas, New Granada; but the mines proved a failure. 
Large companies were, however, organized at times in 
the placer-camps of California, and went to Central 
America, to Peru, Chili, Equador, Brazil, and Pata- 
gonia. They spent vast sums of money, endured ex- 
treme hardships, and surmounted enormous difficulties. 
Some of them acquired fortunes : others lost all their 
gains of toilsome years in California. Even within the 
past year (1884), many old and experienced miners 
have gone to the Transvaal Republic, to Australia, to 
Chili, to the United States of Colombia, and to Ven- 
ezuela; some in the employ of capitalists, others on 
prospecting tours of their own, but all of them spread- 
ing abroad the spirit of American mining-law. Wher- 
ever, since the brave days of '49, these miners went, 
they "stood by each other;" they had "pards," and 
local government ; they could not forget the hard but 


sweet discipline of their loved and lost camps once 
nestling beneath the Sierra snow-peaks ; they clung 
fast to the ethics of that stormy world whose stern 
code, it was once said, " is the creation of the American 
miner ; and he loves, trusts, and obeys it." As, of old, 
Greece was wherever Greeks dwelt ; so the spirit of 
the typical camp is with all American miners, wherever- 
they wander. Some have toiled in Tibet and Assam, 
in Siberia and South Africa, in the mountains of Abys- 
sinia, and in the rivers of Guinea. The rich mines 
rumored to exist in Corea and in Madagascar have long 
attracted the hungry gaze of these bronzed and auda- 
cious prospectors. A party of them built a steamboat, 
and explored the Yukon two summers ago; another 
party has visited southern Arabia ; more than one ex- 
pedition of miners has gone gold-hunting in the South 
Seas, among the isles of the Indian Ocean. Last sum- 
mer a number of California prospectors, after explora- 
tions in Alaska, met with a fearful storm ; and their 
schooner went down with all on board. Everywhere 
it is the same type, unconquerable kindliness, per- 
sistence, and simplicity, unwavering enthusiasm, un- 
blenching courage. 

The writer met a prospector in 1876, in Shasta Coun- 
ty, California ; age forty-five, health perfect, great fund 
of humor, keen observation, grammar-school education 
supplemented by much study. He rode a mule, total 
impedimenta was less than thirty pounds ; had journeyed 
from northern Montana, was on his way to Mexico, 
staked his mule out by the roadside, and the total cost 
of the entire trip was expected to fall within twenty 
dollars. In 1881 we again met the same prospector 
near Calico Camp, San Bernardino County. He was 
riding a pinto horse, but otherwise appeared unchanged 


for better or for worse. When asked to give an account 
of himself, he replied that he had been in Lower Cali- 
fornia, had crossed northern Mexico, spent some months 
in Sonora, then in New Mexico; sold several good "pros- 
pects," and made money. He then went to Western 
Colorado to take a hand in the expected invasion of the 
Indian country; hunted for silver in "the Mormon 
country," for nitrates in southern Nevada; tried his 
fortune in one of the old mining-camps of Mono ; and 
had gone on steadily in a similar round, seldom staying 
more than a few weeks at a place. But he had helped 
to start Calico, and it was a " pretty good camp," well- 
organized and prosperous: so he should probably stay 
there. Such a man is the individual prospector, a per- 
son who, though often solitary for days and weeks, can 
readily join others, and create a society, found a camp, 
establish a town. 

Out of the camps of old, powerful currents have 
flowed into the remotest valley of the western third 
of the American continent. A central fact of early 
New England is the town-meeting ; of early Virginia, 
the plantation ; of the Pacific-coast and Rocky-moun- 
tain region, the mining-camp. It has taken hold of 
popular fancy, has become enshrined in tradition, and 
looms up across the gateways of the history of new 
States. We walk the streets of San Francisco : leaders 
in business here, who once were citizens of a camp, and 
swingers of picks in the beds of mountain torrents. 
We enter the political field : giants of debate and 
caucus here, whose first efforts to control their fellow- 
men were under the Mariposa oaks, or beneath the dome 
of Shasta. We traverse the pastoral regions of the 
West, prairies dotted for miles with cattle, herds upon 
a thousand hills : sun-browned patriarchal princes here, 


a hundred herdsmen at their command, five hundred 
horses in their manadas ; and under the starlight, as 
we ride homeward, our host will tell stories of "how 
we druv' the Sydney Ducks outen Pine Flat," and 
" the hanging of the man what killed Steve Truegood's 
pard." We visit the prosperous and beautiful colonies 
of southern California, fair as a garden of the Lord, 
realms of cherry and apple, olive and orange, grape and 
pomegranate, fig and guava, loquat and passiflora, fruits 
and flowers of two broad zones, mingled in rapturous 
profusion underneath azure skies as of Capri and Sicily ; 
and here also, in the midst of colonists from all parts of 
the world, is some man of pre-eminent force and dignity 
of character, trained in the school of the early mines, 
transmuting by earth's subtile alchemy his golden 
nuggets of '49 to yet more golden apples of Hes- 
perides, and planting golden-banded lilies of Osaka in 
the place of golden leaves from Proserpine's subter- 
ranean gardens. We may even seek the great cities, 
whither all currents flow, New York, London, Paris, 
Berlin, St. Petersburg, the marts of commerce, the 
counting-houses of Barings and Rothschilds, the courts 
of tsar and emperor, the wonderful Broadways of many 
a metropolis, flowing like Amazonian rivers day and 
night without pause : and we shall find men long-trained 
in the lessons of the mining-camps walking as calm 
conquerors through the midst of this world of tumult, 
action, and desperate struggle, ruling railroad systems, 
laying ocean cables, planning for isthmus canals, aiding 
in a thousand enterprises that require energy, capital, 
knowledge of men, and prestige of former success; yet 
faithful in heart, cosmopolites though they are, to the 
memories of their young manhood, the companions of 
their Argonautic quest, the " pards " of their pick-and- 


shovel days in Sierra or Rocky. Upon facts like these 
rest the social results of the mining-camp training. 

But what of things intellectual? What new forces, 
strong to shape the future, passed into the life of the 
nation because of the mining-era ? Again we must 
turn to California as the first of the mining common- 
wealths. Here the era of the camps is already ancient, 
and forever of the past. Its influence extends uncon- 
sciously along the channels of daily existence, and 
colors the opinions of thousands who never heard of a 
mining-camp ; but its fundamental importance consists 
in its place as a classical and heroic background for 
modern life. To all intents and purposes, the true 
mining-era now lies a century or two behind the Cali- 
fornia of to-day. The system of compulsory arbitration, 
and the ruling committee of seven elders, adopted in 
1640 by the pioneers of Portsmouth, marked no greater 
difference from the Rhode-Island Commonwealth of to- 
day, than did the arbitrators and alcaldes of the mining- 
camps represent a different California from that of the 
present time. Institutionally, the mining-camp under- 
lies these Western commonwealths, but intellectually it 
represents a colonial era ; while the Spanish period lies 
behind it, a realm of romance and mystery. Some day 
all this must pass into literature, not from the stand- 
point of outside observation, but from the wiser stand- 
point of men and women of home-training. 

Of California's hoped-for poet, it has been said by one 
of her younger writers : 

" He could not be among those mighty men, 
The Argonauts, their poem was the State; 
Their hands were wed to pick and pan, and fate 
Gave not to them to wield the slender pen. 


" But from her children one shall rise ere long 
To give her mystic legends fitting lays, 
To make her birds and flowers known to fame, 
And match her mountains with his lofty song." * 

There is a faith held by many, that the mingling of 
civilizations, the crossing and tangling of varied eras, in 
California, affords an increasing opportunity for art and 
literature; that the best thoughts of the dwellers in 
this sunny land will some day be equal to the best the 
green earth affords. The same sort of influences are at 
work throughout the mineral region, from the ancient 
pueblo realm of New Mexico, to the shining " land of 
the silver bow," as the Indians called Montana. Laws 
change, systems decay ; but the test of all that is highest 
and best in the life of a community is its literary expres- 
sion, its poetry, its novels, its world-philosophies. The 
greatest value to the States of the Far West, of an 
environment so different from that of merely agricul- 
tural communities, and of institutional beginnings of 
such diverse origins, is in the precious materials thus 
being accumulated for art and song and tale, for litera- 
ture in its world-wide illumination, and for the patient 
use of coming genius. 

i Charles S. Greene, in Overland for January, 1883. 


[A complete bibliography of works relating to the subject-matter of this 
book, if extended to pamphlets and periodicals, would probably be quite suf- 
ficient to fill another volume. We must refer to the lists of books and manu- 
scripts relating to Mexico and California in Mr. H. H. Bancroft's " History 
of the Pacific States of North America,' 1 and in the " Catalogue of the 
Mercantile Library of San Francisco ; " also, to notes and references through- 
out the foregoing pages.'] 


ASIA : Compendium of Geography and Travel. Stanford. 
London, 1882. 

BOECKH : Public Economy of Athens. 2 vols. 

BURTON (R. H.) : Gold Mines of Midian ; also his Explora- 
tions of the Highlands of Brazil (1868), chapter on 
Mining Systems. 

CAMDEN : Britannia. (" Old Authors," 1870 edition.) 

CHEVALIER : Remarks on Production of Precious Metals. Tr. 
London, 1851. 

COMSTOCK: History of the Precious Metals. New York, 

CORNWALL: Its Mines and Miners. London, 1857. Also 
Hunt's Romances of Cornwall. 

ENGLISH MINING CASES, in King's Bench Reports : espe- 
cially Rowe vs.. Brenton, Concannen's Special Report ; 
Smirke's Report ; Rogers vs. Brenton ; Ivimey vs. 
Stocker ; Arkwright vs. Cantrell. 


GMELIN: Reisen durch Sibirien. 4 vols. &6ttingen, 1751. 

HEEREN : Historical Researches into the Politics and Trade 
of Africa and Asia. 4 vols. London, tr., 1860. Also 
his Ancient History (published in 1833, translated by 
Mr. George Bancroft in 1842). 

HERODOTUS : Sayce's edition. Vol. i. and appendices. Lon- 
don, 1883. 

HODGSON : History of Northumberland. 6 vols. 1857. 

HUNT (Robert) : Mineral Statistics of the United Kingdom. 
1865. (Notes on Local Customs.) 

JACOBS : Historical Inquiry into the Production of Metals, 
etc. London, 1851. 

LALOR : Cyclopaedia of Political Science ; article " Mining." 
Professor R. W. Raymond. (Also, Professor Ray- 
mond's historical article, on " Relation of Government 
to Mining," in the United-States Report for 1879 on 
Mineral Resources.) 

EODGE (Henry Cabot) : The Anglo-Saxon Land Law. 

MINING CUSTOMS and Mineral Courts Act (High Peak Dis- 
trict), English Parliament. 1851. 

POLLOCK (Frederick) : The Land Laws. English Citizen 
series, 1883. 

REITEMEIER (Dr. J. F.) : Geschichte des Bergbaues und 
Huttenwesens bei den alten Volkern. Gottingen, 1785. 
(Received prize of Royal Society of Sciences ; contains 
fragments of ancient literature on mines and mining- 

SCHOMAN : Antiquities of Greece. London, 1826. 
SEEBOIIM : English Village Communities. 
SPRENGER : Alte Geographic. 


TRAVELS IN ASIA : Atkinson (Siberia) ; Curzon (Armenia, 
1855) ; Haxthausen (Transcaucasia) ; Mouhot (Indo- 
China) ; Palmer (Desert of the Exodus) ; Pumpelly 
(Across America and Asia) ; Travels of Porter, Pal- 
grave, Rawlinson, Richthofen, and Stanley; Yule's 
Marco Polo ; Gill's River of Golden Sand (Tibet, etc.) ; 
Colquhoun's Across Chryse (Chinese borderlands). 

WILSON (Erasmus) : Egypt of the Past. London, 1882. 
WYLD : Notes on the Discovery of Gold. London, 1851. 


ACOSTA (Father Joseph) : Naturall and Morall History of 
the Indies (Hakluyt Society Publications) . 

ALCEDO (Antonio de) : Diccionario Geographico Historico 
de las Indias Occidentales. Edition of 1812. 

ALSOPP (Robert) ; California and its Gold-mines. London, 

ANDERSON : Silver and Gold of the South-west. St. Louis, 


ARIZONA : Territorial Laws and Reports. 

AUBERTIN (J. J.) : Flight to Mexico. London, 1882. 

AVERT (B. P.) : California Pictures. New York, 1878. 

BANCROFT (H. H.) : History of the Pacific States of North 
America. 13 vols. (Particularly Mexico, vol. vi., and 
California, vol. i. ; 1542-1800). 

BATES (Mrs. D. B.) : Four Years on the Pacific Coast. 
Boston, 1860. 

BARRY (and PATTEN) : Men and Memories of San Francisco. 

BARTLETT : Personal Narrative. 1854. 


BAUSMAN (William) : Early California. San Francisco, 

BENTON (J. A.) : California Pilgrim. 1853. 
BERRY : Gold of California. London, 1849. 

BONWICK (J.) : Mormons and the Silver-mines of the West. 


BORTHWICK (J. D.) : Three Years in California. Edin- 
burgh, 1857. 

BOWIE (August J.) : Hydraulic Mining in California. San 
Francisco, 1878. 

BROCKLEHURST : Mexico to-day. London, 1883. 

BROOKS (B. S.) : Alcalde-grants in San Francisco. Pio- 
neer Monthly, vol. i. 

BROOKS (J. T.) : Four Months among the Gold-seekers. 
London, 1849. 

BRYANT \ What I saw in California. 

BUFFUM (E. G,) : Six Months in the Gold-mines. Phila- 
delphia, 1850. 

BURNETT (Gov. Peter H.) : Recollections of an Old Pioneer. 

New York, 1880. 

BURTON : Across the Rocky Mountains. 1862. 

CALIFORNIA DOCUMENTS : 1850. (Correspondence with 
alcaldes, and reports to the successive military gov- 

CALIFORNIA: Journals of the Senate and Assembly, 1849- 
1855 ; Debates in Convention of 1849, J. R. Browne ; 
Law Reports and Digest (40 vols.) ; Statutes of, 1854 
56 ; Speeches of Gwin, Latham, and Rhodes ; Pro- 
fessor Trask's Senate Report (Sacramento, 1853-54). 


CALIFORNIA : County Histories and Directories ; Amador 
(1881) ; Alameda (1878) ; Calaveras (1880) ; Tuolumne 
(1856) ; Nevada (1867 and 1878) ; also Shasta and 
Trinity (1879). 

CALIFORNIA PIONEERS (Society of) : Addresses of Messrs. 
Van Voorhies, Dwindle, Clark, Clay, Freelon, Kewen, 
Randolph, Holmes, Browne, and others. 

CALIFORNIA: Works of Travel and Observation not sepa- 
rately noted ; Writings of Bowles, Bushnell, Evans, 
Loviat, Linen, M'Clellan, Nordhoff, Ord, Parke, Parry, 
Prime, Rae, Revere, Roberts, Saxon, Seemann, Simp- 
son, Soares, Todd, Vassar, Warren, Wilkes, Wilkinson, 
Winthrop, Wise, Wogan. 

CALIFORNIA: Its Gold and Inhabitants. London, 1856. 
2 vols. 

CALDERON (Madame de la Barca) : Life in Mexico. Lon- 
don, 1852. 

CARSON : Early Recollections of the Mines. Stockton, 1852. 
CASTANARES : Discovery of Gold in 1844. 
CHAMISSO : Californien (1816). 

CHEVALIER : Le Mexique, Ancien et Moderne ; 2 vols. 


CLAVIGERO: Historia Mexico. 1787. 

CKE : Ride over the Rocky Mountains. London, 1851. 

COLLIER: Pictorial Dictionary. London, 1721. 

COLORADO Territorial Enactments ; also, Law Reports. Also 
Fossett's descriptive work on early Colorado. New 
York, 1879. 

COLTON : Three Years in California. 1856. 

CONGDON : Mining Laws and Forms. San Francisco, 1864. 

COULTER : Adventures in California. 


DANA (R. H.) : Two Years Before the Mast. 

DELANO : Life among the Diggings. New York, 1854. 

EMORY : Military Reconnoissance. 1846. 



FARNHAM (E. W.) : California In Doors and Out. New 
York, 1856. 

FITZGERALD (Rev. O. P.) : California Sketches. Nashville, 
Tenii., 1879. 

FISHER (Walter M.) : The Calif ornians. San Francisco, 

FORBES : History of Upper and Lower California. London, 


FOSTER (G. G.) : Gold Regions of California. New York, 

FREMONT (and EMORY) : California Guide-book. New York, 

FROEBEL: Seven Years' View in Northern Mexico. Lon- 
don, 1859. 

GERSTACKER : Kalifornien Gold. Leipsic, 1856. 

GLEASON : History of Catholic Church in California. Also, 
for missions, Reports of Padres Piccola (1702) and 
Serra (1773) ; Governor Figuero's Manifesto to Mexi- 
can Government ; Report of Father-Serra Centennial at 
Monterey, Cal., Aug. 28, 1884, in San Francisco dailies. 

GRAY (William) : Pioneer Times in California. San Fran- 
cisco, 1881. 

HALL: History of San Jose" (California). 1871. 

HAWES (Horace) : Missions in California (pamphlet). 
1856. Also, his arguments in Mexican land-cases. 


HELPER (H. R.) : Land of Gold. Baltimore, 1856. 

HELPS (Sir Arthur) : Spanish Conquest. 4 vols. London, 

HITTELL (John S.) : Resources of California. San Fran- 
cisco, 1874. Also, his History of San Francisco. 

HUGHES (Elizabeth) : The California of the Padres. San 
Francisco, 1871. 

HUMBOLDT (Alexander Von) : Essai Politique sur la Nou- 
velle Espagne. 

JONES (William C.) : Report on Land- titles in California. 
Washington, 1850. Also, Pueblo Question solved. 
San Francisco, 1860. 

KING (Clarence) : Mountaineering hi the Sierra. Boston, 

KING (Thomas B.) : California, Wonder of the Age. New 
York, 1850. 

LETTS (J. M.) : California Illustrated. New York, 1853. 

MARRYAT (Frank) : Mountains and Molehills. London, 

MAYER (Brantz) : Mexico, Aztec, Spanish, Republican ; 
also Mexico, New Mexico, and California. Baltimore, 

MEXICAN LAW: Gamboa's Commentaries of 1761; Orde- 
nanzas de Mineria of 1783 ; Recopilacion de las Leyes 
de las Inclias, 1781 ; Constituciones de Mejico y de las 
Estados Mejicanos. Chapters in H. H. Bancroft, vol. 
vi., and Woolsey's Political Science, vol. ii., chap. vii. 
Decisions in California Courts relating to Mexican land- 
grants and mineral claims. 

MINING AND SCIENTIFIC PRESS: San Francisco (49 vols.). 
MINING RECORD (The) : New York (16 vols.). 


NEVADA : Territorial Acts and State Reports. 
NICOLAY : The Oregon Territory. London, 1846. 
OBER : Travels in Mexico. Boston, 1884. 

OVERLAND MONTHLY (The) : First and second series. Arti- 
cles on Indians, Missions, Spanish Period, Mexico, 
Pueblos, Mining-camps, Pioneer Days, Early Govern- 
ment, etc. San Francisco, 1868-84. The interregnum 
between the two series was occupied by "The Calif or- 

PALMER : New and Old California. New York, 1852. 

PATTERSON : Twelve Years in the Mines of California. 
Cambridge (Mass.), 1862. 

PARRY : Mineral Products of the South-west. 

PERIODICALS, etc. : Articles in New Englander, 1850 ; Brit- 
ish Quarterly, 1850 ; Edinburgh Review, 1858 ; Black- 
wood, 1857 ; -Quarterly Review, 1850; Macmillan's, 
1867 ; Blackwood, 1851 ; Scribner's Monthly, 1878 ; 
Hesperian Magazine, San Francisco, 1856-64 ; Hutch- 
ings's Magazine, San Francisco. 

PLUMMER: Vigilantes of Montana. Helena, M. T., 1866. 
PHILIPS (and DARLINGTON) : Records of Mining. 1862. 
PRINCE : History of New Mexico. 1882. 
RAYMOND (R. W.) : Statistics of Mines. 1869-73. 

REMOND : Report on Northern Mexico, in Proceedings of 
California Academy of Sciences, vol. iii. 

ROCKWELL : Compilation of Spanish and Mexican Laws re- 
lating to Mines. New York, 1851. 

RYAN : Personal Adventures in California. 2 vols. Lon- 
don, 1851. 

SHUCK : Representative Men of the Pacific. San Francisco, 


SOULE : Annals of San Francisco. 

TAYLOR (Bayard) : Eldorado. New York, 1850. 

TYSON : Geology and Industrial Resources of California (in- 
cluding official reports) . Baltimore, 1851. 

TUTHILL : History of California. Also, works of Frost, Nor- 
man, Capron, Greenhow, Thornton, and others. 

UNITED-STATES MINING-LAWS, 1866-1872 ; also Revised 
Codes now in force. 

UNITED STATES (Mining before Calif ornian Discoveries) : 
Bainbridge (Law of Mines) ; Law Reports of Louisi- 
ana, Missouri, Georgia, North Carolina ; scattered articles 
in periodicals and journals elsewhere referred to ; also 
the United-States Mineral Reports. 

VENEGAS : Natural and Civil History of California ; also 
Noticia de la Californie (1757). 

VIGNOTTI (A.) : Coup d'oeil sur les Richesses Me"tallurgiques 
du Mexique. 1868. 

WEEKS : Laws of Mines, Minerals, and Water-rights. San 
Francisco, 1877. 

WESTGARTH: Victoria, late Australia Felix. Edinburgh, 
1851. (Notes on Organization of Early Australian 
Miners as compared with those of California.) 

WILSON (Hon. R. A.) : Alcalde System of California. Cali- 
fornia Reports, vol. i., Appendix. 

WHITNEY (Professor) : Mineral Wealth of the United States. 
Philadelphia, 1851. Also, California Geological Re- 

YALE (Gregory) : Legal Titles to Mining-claims "and Water- 
rights in California. San Francisco, 1867. 


Abandonment of claims, State decision, 275. 

Accadians, their libraries and mines, 10; their mana becomes the Lydian 
rra'na, 13. 

Alcalde, in Cuba, 47; Indian rights before an, 61; Indian alcaldes, 62; 
of towns, 75; land-granting privileges, 78, 80; history of the office, 
83; alcalde in Mexico, 81, 85, 88; alcalde de mesta and jueces del 
campo, 51, 86; alcaldes in colonial California, 89-92; under American 
rule, 94; in San Francisco, 98; duties and powers, 103; in the mines, 
109, 151, 182, 184, 185, 188, 190, 243. 

Alcalde books, the, 92. 

Alder Gulch, Montana, laws of, 254. 

Athens, the mines a permanent tenantcy, 14; directors and manage- 
ment, 15 ; island tribute to Delphos, 16. 

Arbitrators, in Dubuque lead-mines, 44; among Mexican miners, 54, 55; 
in Mexican villages, 85; derived from Roman law, 86; arbitration 
laws of Springfield district, 238; of Sawmill and Brown's Flats, 242; 
alcalde arbitration, 243, 246; fees of arbitrators, 247, 249; Idaho 
arbitrators, 257; the seven elders of Portsmouth, R.I., 296. 

Argonauts of '49, the, 133; extravagance and energy, 139, 140; the 
realms they conquered, 142-144; elements of their society, 148; the 
" mining-camp atmosphere," 211; the Argonaut abroad, 294, 295. 

Arizona, mining-laws of, 282. 

Asiatics not allowed to mine, 213, 246, 248. 

Assemblies, of Sonoma, Sacramento, and San Francisco, 100, 130. 

Assession court, for mine-bounds, 34. 

Associations, of miners, 112; of men going to mines, 113, 114; of tunnel- 
claim owners, 288. 

Australia, California miners in, 292. 

Avery, Benjamin P., his mining experiences, 161. 

Bacon, D., on miners' generosity, 156; on law and order in camps, 172. 

Bar-mote court, duties of, 34. 

" Bear Flag Battalion," the, 91. 

Blackwood's Magazine, views of gold-era, 154. 

Blake, C. T., his experiences in the mines, 166. 

Blast-furnace, first in New England, 38. 

Borthwick, J. D., on organizing instincts of Americans, 155. 


310 INDEX. 

Brown's Flat, laws of, 242. 

Brown's Valley, laws of, 249. 

Burnett, Governor, evidence concerning camps, 153. 

California, permanence of local law, 4; similar laws among ancient and 
mediaeval miners, 6; Spanish and other elements, 7; three influential 
Spanish institutions, 58; Arcadian era in early mines, 119; its decay, 
122; waste of life and property, 159; agricultural future of mining 
counties, 268; decisions respecting local law, 271-276; influence upon 
the West, 290; place of mining-camp in history of, 296. 

Camp-government, various forms of, co-existent, 187. 

Capron, E. S., his observations, 163, 164. 

Carthaginians, the, 6, 16. 

Charters of mining-towns, 209, 210; Chase, Chief-Justice, decision cf, 

Chinese camp, laws of, 243. 

Claim bounds and notices, Cornish, 32, 35; ditch required, 240, 244; 
time limit, 241, 247; fine for destroying, 242; recording, 246; claim- 
stakes, 249, 251; quotations from claim-notices, 250. 

Claims, work required to hold, 237, 239, 243, 276; money expenditure 
required, 248, 252, 256; sale to aliens not allowed, 246; re-location, 
decision of Secretary of Interior, 275. 

Clough, B. D. T., experience in organizing camps, 168. 

Cceur d'Alene camps, laws of, 255. 

College of the Mines, the, 53. 

Colonial miners for copper, 38. 

Colonization, the Book of, 75. 

Colorado, local laws of, 280. 

Columbia District, laws of, 244-246. 

Commandante, the, 6(5, 78 (note). 

Committee, mine worked by a, 38; of San Francisco, 101; rule of Rough 
and Ready, 180; Jurisdiction, 181; chosen by Scotch-Bar miners, 221; 
governs Sawmill Flat, 241; draughts laws for Alder Gulch, 254. 

Conciliations, Book of, 85. 

Congress, The Continental, Act of 1785, 40; lease-hold system, 41; sy- 
nopsis of legislation to 1865, 41 (note); Gwin-Fremont memorial to, 
128; Act of 1872, 255; Fremont's mineral bill, and its defeat, 279; 
Act of 1866 and Revised Statutes, 284, 285. 

Connecticut, Governor "Winthrop's mine in, 38. 

Conness report to the Senate, 283. 

Conventionary tenants, their enfranchisement, 34 (note). 

Conveyance of mineral lands, often verbal, 274. 

Copper Canon, laws of, 249. 

Cornwall, its traditions, 26; exiles from, 27 (note); charter from King 
John, 28; duchy of, 33; antiquity of mining-customs, 35. 

Costs of trial paid by successful parties, 222. 

Council of the Indies, the, 53. 

INDEX. 311 

County, codes of, 234, 251. 

Criminal code of miners, none in early 1848, 119; forms of punishment, 

Cumberland, silver-miners of, 33. 

Dana, B. H., description of San-Francisco harbor, 136. 

Deep-diggings, 243, 247. 

Disputes over claims, how once settled, 174. 

Districts, their definite boundaries, 123; formation of new districts, 124; 

areas of local authority, 125; records often destroyed, 168; funds, 

how secured, 184; number of in the West, 236; special meetings of, 

254, 257; laws of, recognized by State, 272. 
Dougherty, W. C., the Yuba camps he organized, 166. 
"Dowzing" rod, the, 27. 
Dry-diggings, 245. 
Dubuque, the lead-mine difficulties, 43; laws of the lead-miners, 44; 

criminal jurisprudence, 45. 

Eagle Creek camp, Idaho, 255, 257. 

Egyptians, their ancient gold-workings, 11. 

Equality of miners in early camps, 110, 114, 235 (note). 

Estudillo, first alcalde of Dolores, 98. 

Exploration shaft sunk on Main Street, Nevada, 264. 

Folk-moots and their development, 2; early English, 23; Cornish Ouiri- 
mears, 26; meetings of Cumberland miners, 33; folk-moots of the 
Sierras, 125, 176. 

Forcible entry of miners upon agricultural property, 263. 

Forfeiture of claims, 168, 240, 243, 252, 274. 

French Camp, laws of, 247. 

Fuero Juzgo, the Gothic code, 18. 

Gambling, legalized, 136 (note); at Kennebec Hill, 245. 

Germany, its mining-history linked with great national events, 19; 
Hartz customs and early mining-freedom, 20; mining-codes, 21; 
views of Professor Raymond, 24; German miners in Cornwall, 27; 
Germanic ideas at the foundation of local American codes, 277, 278. 

Gold, its permanence, 12; its discovery in California, 108; its abun- 
dance, 115, 119; shadows of gold-search, 159. 

Gold-rushes, 140, 255, 289. 

Gold Spring Camp, laws of, 244. 

Grass Valley, Hungry Convention of, 226; early days in the camp, 171, 

Ground-rent for mineral lands suggested, 114; licenses and other meth- 
ods, 116. 

Ground-sluicing, in ancient Spain, 16. 

Guadalupe Hidalgo, the treaty of, 107, 

312 INDEX. 

Helper, Hinton R., his supremely pessimistic view of California, 159. 
Highway destroyed by miners, instance of, 265. 
Hospital established by Tuolumne miners, 207. 
Hounds, The, suppression of, 136. 

Hydraulic mining, not always destructive, 263, 267; supreme court 
decision concerning, 268. 

Idaho, mining-laws of, 281. 
Illinois District, Colorado, laws of, 280. 
" Inchoate title " to mines in Upper Louisiana, 43. 
Injunction, writs of, issued by justice of the peace, 201. 
Institutional history, its proper field, 2, 3; the link between English 
and German mining-law, 27; true place of the mining-camp in, 294. 

Jackass Gulch, laws of, 237. 

Jackson Creek Camp, its court of appeals, 193-196. 

Jacksonville Camp, laws of, 247. 

Jamestown District, laws of, 240. 

Johnson, T. J., darker views of camp-life, 157. 

Jury in mining-camps, 184. 

Justice of the peace in the mines in 1850 and 1851, 199; Placerville and 
Nevada justices, 201; records of a court in Tuolumne, 202,203; juris- 
diction of, 279. 

Kadi, type of the early alcalde, 83. 

Kennebec Hill, early camp of, 245. 

Kotzebue, visit with Chamisso to San Francisco, 136. 

Lancaster District, South Carolina, its rent system, 39. 

Lander's Bar, mining-suit, 200. 

Land-tenure, writers upon primitive, 2; by " turfe and twigge," 31; 
holdings "in socage," 34; by "squatter associations," 44; of two 
kinds in Mexico, 55; ancient English, 233; among American miners, 

Land-titles, French and Spanish, in Louisiana province, 41; Indian 
rights, 42; a conflict of races, 45; completed by alcalde delivery, 
103; laws of land among miners, 233, 235, 241, 243, 249, 273. 

Law, American system of mining, 4, 5; local and State jurisprudence, 
6; origin Germanic, 18, 22; colonial view of mining, 37; trial of lease 
system, 40; knowledge of French and Spanish essential, 42, 56; 
Mexican system, 52, 57; law the preservation of history, 270; mass 
of mining, 276. 

Law, Mexican civil, its sources, 50; its nature, 51; its weakness, 52; 
mining-law, principles of, 56; recent changes in, 57. 

Laws of miners lacking in ancient world, 17; Germanic, developed from 
"mark-system," 20; Mendip District customs, Cornwall, 29; claim- 
notices, fin-bounds, and mining-freedom, 30; transfers of lands and 
claims, 31; underlying principles of local law, 277; gradual codifica- 
tion, 286; diffusion through mining excitements, 289-293. 

INDEX. 313 

Lawyers, frontier prejudice against, 120; Balboa's denunciation of, 121. 

Literature of California, influence of mining-era upon, 297. 

Lord, Dr. John C., on the American pioneer, 231. 

Loreto, the mission of, 59. 

Louisiana, land-grants in, 42. 

Lydia, as link between Asia and Europe, 13. 

Lynch-law, cases of, 227, 228; in Montana, 230. 

Lynch, Rev. W. F. B., his account of camp-organization, 169. 

Mark, the, of Barcelona, 83. 

Marryat, Frank, life in the mines, 153. 

Mason, Col., his visit to the mines, 115. 

Mayor of San Francisco, linked with alcalde-rule, 102. 

Mexican grants, illegal, 92. 

Miners' meetings, previous laws repealed, 240, 249; legality of, recog- 
nized, 272. 

Mines-royal, definition of, 33 (note); rights reserved in American colo- 
nies, 37; Spanish crown rights, 56. 

Mines, statistics of yield, 49, 132, 146, 157. 

Mining-camps, place in institutional history, 1; growth and perma- 
nence, 5; development into permanent forms, 8; Balboa's Darien 
camp, 48; first California camps, 109, 116-118; doctrine respecting 
debts, 126; political instinct displayed in, 135; deserted camps, 145; 
typical camps, their appearance, 147; rapid growth of, 171; freedom 
of, 182; linked with the race of American pioneers, 231; their defi- 
nite laws, 253; camp-organization still going on, 257, 291; effect on 
society, 287; leaders of men developed in early camps, 294; back- 
ground for intellectual development, 296. 

Mining-cities, Midianitish, 6, 13; of the middle ages, 21. 

Mining-claims, their size, 44, 48, 118, 154, 162, 166, 167, 174, 237, 238, 240, 
243, 247, 248, 254, 257; recognized as property, 276; first regulations 
concerning, 110. 

Mining-courts, Athenian, 16; early Germanic, 21; Cornish parliaments 
and stannary-courts, 28; the bar-motes, 34; earliest California, 125; 
akin to primeval folk-moot, 177; form of procedure, 178; contrasted 
with mob-law, 229-231 ; their varied powers, 234. 

Mining-treaty of 1185, 21. 

Mining-tribes, Siberian, 6, 12; Phrygo-Thrakians, 13; crushed by Ori- 
ental despotisms, 14. 

Missions, the, economic features, management, and secularization, 63- 
67; appearance of California during mission era, 69, 70; lands of 
Buenos Ayres missions, 78. 

Monopoly in mines, its failure at Rough and Ready, 171. 

Montezuma Camp, laws of, 246. 

Mormon Diggings, the first mines there, 115. 

New Kanaka camp, laws of, 248. 



" New Helvetia," and Capt. Sutter, 107. 
Nevada City, its early days, 210. 
North San Juan, laws of, 247. 

Occupation, evidence of, 172, 174, 246. 

Oglesby, Governor R. J., of Illinois, notes from his pioneer days, 160. 

Orchard paid for by miners' court, 266. 

Oregon, camps of, 191; local mining-laws, 282. 

Ownership of same ground for different purposes, 271. 

Parsons, George F., graphic picture of gold-fever, 158. 

Partnership a sacred bond in the mines, 111. 

Patterson, Lawson B., views in the mines, 162. 

Phoenicians as miners and traders, 11. 

Pilot Hill, laws of, 248. 

Pioneers, American, their fitness for self-government, 3, 231 ; their 
contribution the mining-camp, 4; views of a senate committee, 8; 
their settlement of the West, 105; tendency to maltreat the Mexi- 
can, 218; their world- wide influence, 293. 

Placers, definition of, 5; early Italian, 17; ancient miners in, 18; 
placers in British Isles, 25; Cornish tin-placers, 26, 35; French 
Broad, the, 39; Santa Maria del Darien, the, 48; California, 118. 
(See also " Mining-camps," " Claims," and " Districts.") 

Population, statistics of, 132, 135. 

Possessory rights, 5, 234, 270. 

Poverty Hill, laws of, 243. 

Prices in the mines, 139, 161. 

Prospectors, Grecian, 15; Thracian and Gaulish, 19; German, 20; Corn- 
ish, 27, 34; in the Southern States, 39, 40; in Spanish Mexico, 54; 
American, 140, 143, 290-294; professional, 255. 

Public lands, state decisions regarding miners upon, 260. 

Pueblos, or free towns, 66; Indian pueblos of New Mexico, 72; early Cali- 
fornia pueblos, 74; town council, 75; lands, and how granted, 76, 77. 

Quarrels in the camps, 126. 

Quartz of ancient Nubia, 11. 

Quartz-claims, California laws of, 251, 252; laws of in Nevada, 253; 

according to United-States mining-laws, 255 ; " inclined " and 

"square" locations, 278. 
Quartz-mining, beginning of, in California, 251. 

"Ramona," its realism, 76. 

Recorder of claims, 168; fees of, 239, 246, 254; to examine work done, 

252; time allowed prospector, 256. 
Redding, B. B., 269. 
Reese River, district of, laws of, 281. 
Registry, book of, 238. 
"Revolution of February," the, 106, 

INDEX. 315 

Eights of miners to enter on agricultural lands, 241 ; local laws upon, 
259; State acts and decisions concerning, 260; illustrations of, 262- 
266; the famous "Slickens" suits, 267; State decisions concerning 
rights, 273. 

Riley, General, leaves local government to the miners, 117 ; reports 
favorably upon the camps, 150, 151. 

Riparian rights, 256, 271, 275. 

Rodeos of Spanish-Americans, 87. 

Roman, Anton, his recollections of Siskiyou camps, 219. 

Romans, the, in Spain, 17; wreck of their system, 18. 

Ryan, evidence concerning camps, 150. 

San Francisco, settlement, 98; alcalde government, 100; harbor of, 136; 

society in, 137 ; trying conditions of business, 138. 
San Jose, convention of, 48; and its results, 129= 
Sargent, Hon. A. A., on the miners' justice of the peace, 199. 
Serra, Father Junipero, 60. 
School of mines, need of a national, 286. 
Scotch Bar, a famous mining-case, 220-224. 
Scythian tribes, 11. 
Shaw's Flat, laws of, 241. 

Sheriff of the miners, 183; assessed by an alcalde, 186. 
Social instinct, the, its three forms, 10. 
Socialism of the mines, 110, 117, 119, 235. 
Sonoranian camp, brought under alcalde rule, 127 ; foreign invasion 

repelled, 141; mayor and town council, 207; trouble with Mexicans, 


Southern mines, law and order in, 217. 
Spanish Bar, customs of, 174. 

Spanish colonies, their civil government, 50, 51; its weakness, 52. 
Spanish colonists, their first mining-camp, 48. 
Spanish "conquistadores," the, 49. 
Spanish will, primitive form of, 93. 
Stannary parliament, the, 28. 
State of Rough and Ready, the, 225. 
State of California, influence of returned miners, 127-131. 
State convention from mining-districts suggested, 253. 
State courts and Territorial, on miners' local law, 271, 273, 274, 281, 282. 
Stewart, a Nevada senator, speech of, 283. 
Stillman, J. B., evidence upon the camps, 156. 
St. Vrain concession, the, 43. 

Supreme Court of the United States, Chief- Justice Chase's decision, 282. 
Sweetland District, laws of, 247. 
Sword-oath, brothers of the, 23. 

" Tailings," 275. 

Tax on foreign miners, the, 212, 276. 

316 INDEX. 

Taylor, Bayard, evidence concerning camps, 151. 

Tewington, manor of, its caption of seizin,- 34. 

Theft in camps, its peculiar turpitude, 119, 126; its punishment, 179, 
180, 231. 

Tin-bounds and toll-tin taxes, 30; landmarks of bounds, 31; classifica- 
tion of miners, 34. 

Towns, governed by miners, 206, 210; vacant lots seized for city use, 208. 

Township of California, the, 171. 

Transfers of claims not allowed, 174. 

Tribunal of the Mexican miners, 52; its paternal supervision, 54; trans- 
fer of its power, 57. 

Trinity County, code of a camp in, 248. 

Truro, miners' parliament of 1752, 29. 

Tuttletown District, laws of, 242. 

Tunnel claims, 239, 246, 248. 

Ugarte, his missionary ship, 60. 
Union of claims for assessment work, 256. 
United-States patent, lands held by, 262. 
Umpire, in French camp, how supported, 247. 

" Verbal Processes," Book of, during Spanish era, 92. 

Vigilantes of Montana, their work, 230-231. 

Village lands, fourfold division of, 74. 

Virginia, iron-mine, 37; gold-placers, 39. 

Visidados, the, 51. 

Vocabulary of Cornish miners, the, 27. 

Washington Camp, growth of, 171. 

Water-ditch company organized by miners, 242, 246. 

Williams, Samuel, of the " San Francisco Bulletin," 161. 

Winthrop, Gov. John, mining-license, 37. 

Winthrop, Theodore, glimpses of frontiersmen, 156. 

Women in California mines, 137. 

Writs of camp alcaldes, 183. 

Yerba Buena, its growth from pueblo to metropolis, 79-80, 97. 
Yorktown District, laws of, 243. 
Yuba, early camps near the, 165, 174. 
Yukon, the, explored by miners, 291, 293.